EXHIBIT 4.2
Subordinated Debt Indenture
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THE SCOTTS COMPANY, as Issuer
_________, as Trustee
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Indenture
Dated as of __________ __, 2002
TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................................1
Section 1.01. Definitions............................................................................1
Section 1.02. Compliance Certificates and Opinions...................................................9
Section 1.03. Form of Documents Delivered to Trustee.................................................9
Section 1.04. Notices, etc., to Trustee and Company.................................................10
Section 1.05. Notice to Holders; Waiver.............................................................10
Section 1.06. Conflict with Trust Indenture Act.....................................................11
Section 1.07. Effect of Headings and Table of Contents..............................................11
Section 1.08. Successors and Assigns................................................................11
Section 1.09. Separability Clause...................................................................11
Section 1.10. Benefits of Indenture.................................................................11
Section 1.11. Governing Law.........................................................................11
Section 1.12. Legal Holidays........................................................................11
Section 1.13. No Security Interest Created..........................................................12
Section 1.14. Liability Solely Corporate............................................................12
ARTICLE TWO DEBT SECURITY FORMS..................................................................................12
Section 2.01. Forms Generally.......................................................................12
Section 2.02. Form of Trustee's Certificate of Authentication.......................................13
Section 2.03. Securities in Global Form.............................................................13
ARTICLE THREE THE DEBT SECURITIES................................................................................13
Section 3.01. Amount Unlimited; Issuable in Series..................................................13
Section 3.02. Denominations.........................................................................17
Section 3.03. Execution, Authentication, Delivery and Dating........................................17
Section 3.04. Temporary Debt Securities; Global Notes Representing Registered Securities............18
Section 3.05. Transfer and Exchange.................................................................21
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.................................22
Section 3.07. Payment of Interest; Interest Rights Preserved........................................22
Section 3.08. Cancellation..........................................................................23
Section 3.09. Computation of Interest...............................................................24
Section 3.10. Currency of Payments in Respect of Debt Securities....................................24
Section 3.11. Judgments.............................................................................26
Section 3.12. Exchange Upon Default.................................................................27
Section 3.13. CUSIP and ISN Numbers.................................................................27
ARTICLE FOUR SATISFACTION AND DISCHARGE..........................................................................27
Section 4.01. Satisfaction and Discharge of Indenture...............................................27
Section 4.02. Application of Trust Money............................................................29
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ARTICLE FIVE REMEDIES............................................................................................29
Section 5.01. Events of Default.....................................................................29
Section 5.02. Acceleration of Maturity; Rescission and Annulment....................................30
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.......................31
Section 5.04. Trustee May File Proofs of Claim......................................................32
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities......................32
Section 5.06. Application of Money Collected........................................................33
Section 5.07. Limitation on Suits...................................................................33
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.............34
Section 5.09. Restoration of Rights and Remedies....................................................34
Section 5.10. Rights and Remedies Cumulative........................................................34
Section 5.11. Delay or Omission Not Waiver..........................................................34
Section 5.12. Control by Holders....................................................................34
Section 5.13. Waiver of Past Defaults...............................................................35
Section 5.14. Undertaking for Costs.................................................................35
Section 5.15. Waiver of Stay or Extension Laws......................................................35
ARTICLE SIX THE TRUSTEE..........................................................................................36
Section 6.01. Certain Duties and Responsibilities...................................................36
Section 6.02. Notice of Defaults....................................................................37
Section 6.03. Certain Rights of Trustee.............................................................37
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities...........................38
Section 6.05. May Hold Debt Securities..............................................................38
Section 6.06. Money Held in Trust...................................................................38
Section 6.07. Compensation and Reimbursement........................................................38
Section 6.08. Disqualification; Conflicting Interests...............................................39
Section 6.09. Corporate Trustee Required; Eligibility...............................................44
Section 6.10. Resignation and Removal; Appointment of Successor.....................................44
Section 6.11. Acceptance of Appointment by Successor................................................45
Section 6.12. Merger, Conversion, Consolidation or Succession to Business...........................46
Section 6.13. Preferential Collection of Claims Against Company.....................................46
Section 6.14. Appointment of Authenticating Agent...................................................49
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................................................51
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.............................51
Section 7.02. Preservation of Information; Communication to Holders.................................51
Section 7.03. Reports by Trustee....................................................................53
Section 7.04. Reports by Company....................................................................54
ARTICLE EIGHT CONCERNING THE HOLDERS.............................................................................55
Section 8.01. Acts of Holders.......................................................................55
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holder.......................55
Section 8.03. Persons Deemed Owners.................................................................55
Section 8.04. Revocation of Consents; Future Holders Bound..........................................56
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ARTICLE NINE HOLDERS' MEETINGS...................................................................................56
Section 9.01. Purposes of Meetings..................................................................56
Section 9.02. Call of Meetings by Trustee...........................................................56
Section 9.03. Call of Meetings by Company or Holders................................................57
Section 9.04. Qualifications for Voting.............................................................57
Section 9.05. Regulations...........................................................................57
Section 9.06. Voting................................................................................58
Section 9.07. No Delay of Rights by Meeting.........................................................58
ARTICLE TEN CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................................................58
Section 10.01. Company May Consolidate, etc., Only on Certain Terms..................................58
Section 10.02. Successor Corporation Substituted.....................................................59
ARTICLE ELEVEN SUPPLEMENTAL INDENTURES...........................................................................59
Section 11.01. Supplemental Indentures Without Consent of Holders....................................59
Section 11.02. Supplemental Indentures With Consent of Holders.......................................60
Section 11.03. Execution of Supplemental Indentures..................................................61
Section 11.04. Effect of Supplemental Indentures.....................................................61
Section 11.05. Conformity with Trust Indenture Act...................................................61
Section 11.06. Reference in Debt Securities to Supplemental Indentures...............................61
Section 11.07. Notice of Supplemental Indenture......................................................62
ARTICLE TWELVE COVENANTS.........................................................................................62
Section 12.01. Payment of Principal, Premium and Interest............................................62
Section 12.02. Officer's Certificate as to Default...................................................62
Section 12.03. Maintenance of Office or Agency.......................................................62
Section 12.04. Money for Debt Securities; Payments To Be Held in Trust...............................63
Section 12.05. Corporate Existence...................................................................64
Section 12.06. Waiver of Certain Covenants...........................................................64
ARTICLE THIRTEEN REDEMPTION OF DEBT SECURITIES...................................................................64
Section 13.01. Applicability of Article..............................................................64
Section 13.02. Election to Redeem; Notice to Trustee.................................................64
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed................................65
Section 13.04. Notice of Redemption..................................................................65
Section 13.05. Deposit of Redemption Price...........................................................66
Section 13.06. Debt Securities Payable on Redemption Date............................................66
Section 13.07. Debt Securities Redeemed in Part......................................................66
ARTICLE FOURTEEN SINKING FUNDS...................................................................................67
Section 14.01. Applicability of Article..............................................................67
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities..................67
Section 14.03. Redemption of Debt Securities for Sinking Fund........................................67
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ARTICLE FIFTEEN DEFEASANCE.......................................................................................69
Section 15.01. Applicability of Article..............................................................69
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations......................69
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust..................70
Section 15.04. Repayment to Company..................................................................71
ARTICLE SIXTEEN SUBORDINATION....................................................................................71
Section 16.01. Agreement to Subordinate..............................................................71
Section 16.02. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Debt Securities.......................................................................71
Section 16.03. No Payment on Debt Securities in Event of Default on Senior Indebtedness..............73
Section 16.04. Payments on Debt Securities Permitted.................................................73
Section 16.05. Trustee to Effectuate Subordination...................................................73
Section 16.06. Notices to Trustee....................................................................73
Section 16.07. Trustee as Holder of Senior Indebtedness..............................................74
Section 16.08. Modification of Terms of Senior Indebtedness..........................................74
Section 16.09. Reliance on Judicial Order or Certificate of Liquidation Agent........................74
ARTICLE SEVENTEEN CONVERSION.....................................................................................75
Section 17.01. Applicability; Conversion Privilege...................................................75
Section 17.02. Conversion Procedure; Conversion Price; Fractional Shares.............................75
Section 17.03. Adjustment of Conversion Price for Common Shares......................................76
Section 17.04. Consolidation or Merger of the Company................................................78
Section 17.05. Notice of Adjustment..................................................................79
Section 17.06. Notice in Certain Events..............................................................79
Section 17.07. Company to Reserve Shares; Registration; Listing......................................80
Section 17.08. Taxes on Conversion...................................................................80
Section 17.09. Conversion After Record Date..........................................................80
Section 17.10. Company Determination Final...........................................................81
Section 17.11. Trustee's Disclaimer..................................................................81
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ __, 2002
Trust Indenture Act Section Indenture Section
Sec. 310 (a)(1)............................................. 6.09
(a)(2)............................................. 6.09
(a)(3)............................................. Not Applicable
(a)(4)............................................. Not Applicable
(a)(5)............................................. 6.09
(b)................................................ 6.08, 6.10
(c)................................................ Not Applicable
Sec. 311 (a)................................................ 6.13(a)
(b)................................................ 6.13(b)
(c)................................................ Not Applicable
Sec. 312 (a)................................................ 7.01, 7.02(a)
(b)................................................ 7.02(b)
(c)................................................ 7.02(c)
Sec. 313 (a)................................................ 7.03(a)
(b)................................................ 7.03(b)
(c)................................................ 7.03(a)
7.03(c)
Sec. 314 (a)................................................ 7.04, 12.02
(b)................................................ Not Applicable
(c)(1)............................................. 1.02
(c)(2)............................................. 1.02
(c)(3)............................................. Not Applicable
(d) Not Applicable
(e) 1.02
Sec. 315 (a)................................................ 6.01(a),
6.01(c)
(b)................................................ 6.02,
7.03(a)(7)
(c)................................................ 6.01(b)
(d)(1)............................................. 6.01(a)
(d)(2)............................................. 6.01(c)(2)
(d)(3)............................................. 6.01(c)(3)
(e)................................................ 5.14
Sec. 316 (a)(1)(A).......................................... 5.02, 5.12
(a)(1)(B).......................................... 5.13
(a)(2)............................................. Not Applicable
(b)................................................ 5.08
(c )............................................... Not Applicable
Sec. 317 (a)(1)............................................. 5.03
(a)(2) ............................................ 5.04
(b)................................................ 12.04
Sec. 318 ................................................... 1.06
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE dated as of _______ __, 2002, between THE SCOTTS
COMPANY, an Ohio corporation (hereinafter called the "Company"), having its
principal executive office ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and
________________________ (hereinafter called the "Trustee"), having its
Corporate Trust Office at _____________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
and subordinated debentures, notes, bonds or other evidences of indebtedness
(herein generally called the "Debt Securities"), to be issued in one or more
series, as in this Indenture provided.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
Debt Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Debt Securities or of
Debt Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles or as provided with respect to any series of Debt
Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term "generally
accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder with respect to any series
of Debt Securities, shall mean such as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession of the United States
which are in effect as of the issuance date of such series of Debt
Securities; and
2
(4) 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.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.01.
"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" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with")
as used with respect to any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise.
"Authenticating Agent" has the meaning specified in Section
6.14.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act
hereunder or any director or directors and/or officer or officers of
the Company to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.01.
"Capital Stock" means: (i) in the case of a corporation,
corporate stock (however designated); (ii) in the case of an
association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of
corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general
or limited); and (iv) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Closing Price" of the Common Shares shall mean the last
reported sale price of such stock (regular way) as shown on the
Composite Tape of the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, in case no such sale takes place on such day,
the average of the closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange
on which such stock is listed or admitted to trading), or, if it is not
listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices as reported by the National
Association of Securities Dealers Automated Quotation System (NASDAQ),
or if such stock is not so reported, the average of the closing bid and
asked prices as furnished by any member of the National Association of
Securities Dealers, Inc., selected from time to time by the Company for
that purpose.
3
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Shares" shall mean the Common Shares, no par value, of
the Company authorized at the date of this Indenture as originally
signed, or any other class of stock resulting from successive changes
or reclassifications of such Common Shares, and in any such case
including any shares thereof authorized after the date of this
Indenture.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman of the Board of Directors, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Component Currency" has the meaning specified in Section
3.10(h).
"Conversion Agent" means any Person authorized by the Company
to receive Debt Securities to be converted into Common Shares on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may
at any time from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section
3.10(d).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community or (ii)
any Currency unit to be used for the purposes for which it was
established.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Shares, the price per
share of Common Shares at which the Debt Securities of such series are
so convertible pursuant to Section 3.01 with respect to such series, as
the same may be adjusted from time to time in accordance with Section
17.03.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at ________________.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the agent, if any, from
time to time selected by the Trustee for purposes of Section 3.10;
provided that such agent shall accept such appointment
4
in writing and the terms of such appointment shall be acceptable to the
Company and shall, in the opinion of the Company and the Trustee at the
time of such appointment, require such agent to make the determinations
required by this Indenture by a method consistent with the method
provided in this Indenture for the making of such decision or
determination.
"Current Market Price" on any date shall mean the average of
the daily Closing Prices per share of Common Shares for any thirty (30)
consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not
commence more than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 17.03(3), the "Current
Market Price" of the Common Shares shall mean the average of the daily
Closing Prices per share of Common Shares for the five (5) consecutive
Trading Days ending on the date of the distribution referred to in
Section 17.03(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Depositary" means with respect to the Debt Securities of any
series issuable or issued in the form of one or more Global Notes, the
Person designated as Depositary by the Company pursuant to Section 3.01
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person, "Depositary" as
used with respect to the Debt Securities of any such series shall mean
the Depositary with respect to the Global Notes of that series.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code (or any successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.10(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(f).
"Election Date" has the meaning specified in Section 3.10(h).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts
5
of principal, premium, if any, and any interest respectively (on an
aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section
3.02 in the relevant Currency or Currency unit), payable on the basis
of such Market Exchange Rate sent (in the case of a telex) or signed
(in the case of a certificate) by the Treasurer or any Assistant
Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.01.
"Foreign Currency" mean any coin, currency, currency unit or
composite currency, including, without limitation, the euro, issued by
the government of one or more countries, other than the United States,
or by any internationally recognized union, confederation or
association of such governments.
"Global Note" means with respect to any series of Debt
Securities issued hereunder, a Debt Security (in either temporary or
permanent form) which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
indentures supplemental hereto, or resolution of the Board of Directors
and set forth in an Officer's Certificate, which shall be registered in
the name of the Depositary or its nominee and which shall represent,
and shall be denominated in an amount equal to the aggregate principal
amount of, all the Outstanding Debt Securities of such series or any
portion thereof, in either case having the same terms, including,
without limitation, the same original issue date, date or dates on
which principal is due and interest rate or method of determining
interest.
"Holder," "Holder of Debt Securities" or other similar terms,
means, with respect to a Debt Security, the Registered Holder.
"Indenture" means this instrument as originally executed, or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities as
established pursuant to Section 3.01.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only on a certain date,
means interest payable after such date.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means the noon Dollar buying rate in
The City of New York for cable transfers of such currency or currencies
as published by the Federal Reserve Bank of New York as of the most
recent available date. If such Market Exchange Rate is not available
for any reason with respect to such currency, the Trustee shall use, in
its sole discretion and without liability on its part, such quotation
of the Federal Reserve Bank of New York or quotations from one or more
major banks in The City of New York or in the country of issue of the
currency in question, which for purposes of the euro shall be any
member state of the European Union that has adopted the euro, as the
Trustee shall deem appropriate.
6
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt 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, repayment or repurchase at the option of the Holder
thereof or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company)
and who shall be satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities for whose redemption money in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Debt Securities; provided, however, that if such Debt
Securities are to be redeemed notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made and the
date for such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Debt
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Debt Securities Outstanding have
performed any Act hereunder, Debt Securities owned by the Company or
any other obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to
be Outstanding (provided, that in connection with any offer by the
Company or any obligor to purchase Debt Securities, Debt Securities
rendered by a Holder shall be Outstanding until the date of purchase),
except that, in determining whether the Trustee shall be protected in
relying upon any such Act, only Debt Securities which the Trustee knows
to be so owned shall be so disregarded. Debt 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 to act with respect to such Debt Securities and that the pledgee
is not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor. In determining
whether the Holders of the requisite principal amount of Outstanding
Debt Securities have performed any Act hereunder, the principal amount
of a Discount Security that shall be deemed to be Outstanding for such
purpose shall be the amount of the principal thereof that would be due
and payable as of the date
7
of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02 and the principal amount of a
Debt Security denominated in a Foreign Currency that shall be deemed to
be Outstanding for such purpose shall be the amount calculated pursuant
to Section 3.10(j).
"Overdue Rate" when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any agency
or political subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.06 in lieu of a mutilated, lost, destroyed or
stolen Debt Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Debt Security.
"Redemption Date" when used with respect to any Debt Security
to be redeemed, means the date fixed for redemption by or pursuant to
this Indenture, including pursuant to the Board Resolution or
supplemental indenture relating to such Debt Security as contemplated
by Section 3.01.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium, if
any, and accrued and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.01 which is registered as to
principal and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for the purpose pursuant to Section 3.01 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any vice president, the secretary, any assistant secretary or any
assistant vice president or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a
particular corporate trust matter, any other
8
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and premium, if
any) and unpaid interest on (i) indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, for money borrowed (other than the
indebtedness evidenced by the Debt Securities of any series), unless in
the instrument creating or evidencing the same or pursuant to which the
same is outstanding it is provided that such indebtedness is not senior
or prior in right of payment to the Debt Securities, and (ii) renewals,
extensions, modifications and refundings of any such indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section
3.10(h).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security as the date on
which the principal of such Debt Security or such installment of
principal, premium or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association, or other business entity (other than a
partnership) of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time of determination owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries
of that Person or a combination thereof and (ii) any partnership of
which more than 50% of the partnership's capital accounts, distribution
rights or general or limited partnership interests are owned or
controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
"Trading Day" shall mean, with respect to the Common Shares,
so long as the Common Shares are listed or admitted to trading on the
New York Stock Exchange, a day on which the New York Stock Exchange is
open for the transaction of business, or, if the Common Shares are not
listed or admitted to trading on the New York Stock Exchange, a day on
which the principal national securities exchange on which the Common
Shares are listed is open for the transaction of business, or, if the
Common Shares are not so listed or admitted for trading on any national
securities exchange, a day on which NASDAQ is open for the transaction
of business.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall 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 Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
9
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in force at the date as of which this instrument was
executed, and, to the extent required by law, as amended.
"United States" means the United States of America (including
the States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Government Obligations" has the meaning specified in
Section 15.02.
"Valuation Date" has the meaning specified in Section 3.10(c).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after the title "Vice President."
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee 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 request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
10
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.05. NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given to Registered Holders (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to such Registered Holders as their names and addresses appear
in the Security Register, within the time prescribed; PROVIDED, HOWEVER, that,
in any case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 3.01, shall be sufficiently given if given in the manner
specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice by mail, such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
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
11
11
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders 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, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 1.06. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
the duties imposed on any Person by the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 1.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.08. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.
SECTION 1.09. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder, and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.11. GOVERNING LAW.
This Indenture and the Debt Securities shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.01 or in any
Debt Security, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Debt Security of any series shall not be a Business Day
at any Place of Payment for the Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal (and premium, if any) or interest need not be
made at such Place of Payment on such date, but may be
12
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date or at
the Stated Maturity, and no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such payment is made or
duly provided for on such Business Day.
SECTION 1.13. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities, express
or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and
in effect in any jurisdiction where property of the Company or its Subsidiaries
is or may be located.
SECTION 1.14. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on any Debt Securities, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any shareholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities are solely corporate obligations, and that
no personal liability whatsoever shall attach to, or be incurred by, any such
incorporator, shareholder, officer or director, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any such
predecessor or successor corporation), either directly or indirectly through the
Company or any such predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in any of the
Debt Securities or to be implied herefrom or therefrom; and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issue of Debt Securities; PROVIDED, HOWEVER, that nothing herein or in the Debt
Securities contained shall be taken to prevent recourse to and the enforcement
of the liability, if any, of any shareholder or subscriber to capital stock upon
or in respect of the shares of capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Debt Securities of each series shall be substantially in
one of the forms (including global form) established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, and shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the Debt Securities
may be listed, or to conform to usage, all as determined by the officers
executing such Debt Securities as conclusively evidenced by their execution of
such Debt Securities. If the form of a series of Debt Securities (or any Global
Note) is
13
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note).
The definitive Debt Securities of each series shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as conclusively
evidenced by their execution of such Debt Securities.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be
borne by the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the
within mentioned Indenture.
-------------------------
-------------------------
By_______________________
Authorized Signatory
SECTION 2.03. SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form (a
"Global Note"), such Global Note may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Note to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Global Note. Any instructions by the Company with respect to a Global Note,
after its initial issuance, shall be in writing but need not comply with Section
1.02.
Global Notes may be issued in either temporary or permanent
form. Permanent Global Notes will be issued in definitive form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may
be authenticated and delivered under this Indenture is unlimited.
14
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and (subject to
Section 3.03) set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
(2) the aggregate principal amount of such series of Debt
Securities and any limit, on the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 3.04, 3.05, 3.06, 11.06
or 13.07);
(3) the percentage of the principal amount at which Debt
Securities of such series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity or upon
redemption thereof or the method by which such portion shall be
redeemable;
(4) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates or
the method by which such date or dates will be determined, on which the
principal of (and premium, if any, on) the Debt Securities of such
series are or may be payable (which, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the series
issued from time to time);
(5) the rate or rates (which may be variable or fixed) at
which the Debt Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which such interest, if any, shall accrue or the method by
which such date or dates shall be determined (which, in either case or
both, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), and the Regular Record Dates,
if any, for the interest payable on such Interest Payment Dates and the
notice, if any, to Holders regarding the determination of interest, the
manner of giving such notice, the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months
and any conditions or contingencies as to the payment of interest in
cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee, where the principal of (and
premium, if any) and interest on Debt Securities of the series shall be
payable; the extent to which, or the manner in which, any interest
payable on any Global Note on an Interest Payment Date will be paid, if
other than in the manner provided in Section 3.07; and the manner in
which any principal of, or premium, if any, on, any Global Note will be
paid, if other than as set forth elsewhere herein and whether any
Global Note will require any notation to evidence payment of principal
or interest;
(7) the obligation, if any, of the Company to redeem, repay,
purchase or offer to purchase Debt Securities of the series pursuant to
any mandatory redemption, sinking fund or analogous provisions or upon
other conditions or at the option of the Holder thereof and the period
or periods within which or the dates on which, the prices at which and
the terms and
15
conditions upon which the Debt Securities of the series shall be
redeemed, repaid, purchased or offered to be purchased, in whole or in
part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series at its option and the period or periods
within which, or the date or dates on which, the price or prices at
which, and the terms and conditions upon which such Debt Securities may
be redeemed, if any, in whole or in part, at the option of the Company
or otherwise;
(9) if the Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof
(except as provided in Section 3.04);
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.02;
(11) provisions, if any, for the defeasance or discharge of
certain of the Company's obligations with respect to Debt Securities of
the series;
(12) whether provisions for payment of additional amounts or
tax redemptions shall apply and, if such provisions shall apply, such
provisions;
(13) if other than Dollars, the Foreign Currency or Currencies
in which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the
Debt Securities of the series may be made, and the particular
provisions applicable thereto and, if applicable, the amount of Debt
Securities of the series which entitles the Holder of a Debt Security
of the series or its proxy to one vote for purposes of Section 9.05;
(14) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Debt Securities are denominated or payable without such election, in
addition to or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid
if such election is made;
(15) the date as of which any Debt Securities of the series
shall be dated, if other than as set forth in Section 3.03;
(16) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index, including, but not limited to,
an index based on a Currency or Currencies other than that in which the
Debt Securities are denominated or payable, or any other type of index,
the manner in which such amounts shall be determined;
16
(17) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(18) the designation of the original Currency Determination
Agent, if any;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.01;
(21) any addition to, or modification or deletion of, any
Events of Default, covenants or term of the subordination provided for
with respect to Debt Securities of the series;
(22) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Notes and, in
such case, the Depositary for such Global Note or Notes; and if the
Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which
Global Notes representing Debt Securities of the series may be
exchanged for Registered Securities in definitive form, if other than,
or in addition to, the manner and circumstances specified in Section
3.04(b);
(23) the designation, if any, of any depositaries, trustees
(other than the applicable Trustee), Paying Agents, Authenticating
Agents, Security Registrars (other than the Trustee) or other agents
with respect to the Debt Securities of such series;
(24) if the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and
terms of such certificates, documents or conditions;
(25) whether the Debt Securities of such series will be
convertible into shares of Common Shares and, if so, the terms and
conditions, which may be in addition to or in lieu of the provisions
contained herein, upon which such Debt Securities will be so
convertible, including the conversion price and the conversion period;
(26) the portion of the principal amount of the Debt
Securities which will be payable upon declaration of acceleration of
the maturity thereof, if other than the principal amount thereof;
(27) the nature, content and date for reports by the Company
to the holders of the Offered Debt Securities;
(28) any change in the right of the Trustee or the Holders to
declare the principal of, and premium and interest on, such Debt
Securities due and payable; and
(29) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, which, as set forth above, may
be determined by the Company from time to time as to Debt Securities of a series
if so provided in or established pursuant to the authority granted in a Board
Resolution or in any
17
such indenture supplemental hereto, and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 3.03) set forth in
such Officers' Certificate, or in any such indenture supplemental hereto. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
If any of the terms of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.02. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.01
with respect to the Debt Securities of any series, the Debt Securities of such
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities of any series shall be executed on behalf
of the Company by its Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, one of its Vice Presidents or its Treasurer, under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual or
facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series, executed by the Company, to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Debt Securities
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Debt Securities. If all the Debt Securities of any one series are
not to be issued at one time and if a Board Resolution or supplemental indenture
relating to such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Debt Securities
such as interest rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue. If any Debt Security shall be represented by a
permanent Global Note, then, for purposes of this Section and Section 3.04, the
notation of a beneficial owner's interest therein upon original issuance of such
Debt Security or upon exchange of a portion of a temporary Global Note shall be
deemed to be delivery in connection with the original issuance of such
beneficial owner's interest in such permanent Global Note.
The Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, prior to the
authentication and delivery of the Debt Securities of such series, (i) the
supplemental indenture or the Board Resolution by or pursuant to which the form
and terms of such Debt Securities have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such
Debt Securities;
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(2) the forms and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such
supplemental indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
Trustee, is a valid and binding obligation enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law);
(4) the execution and delivery of such Debt Securities have
been duly authorized by all necessary corporate action of the Company
and such Debt Securities have been duly executed by the Company and,
assuming due authentication by the Trustee and delivery by the Company,
are valid and binding obligations enforceable against the Company in
accordance with their terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and subject to such other
exceptions as counsel shall request and as to which the Trustee shall
not reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of
Debt Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt
Securities if the issuance of such Debt Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its
authentication.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.04. TEMPORARY DEBT SECURITIES; GLOBAL NOTES
REPRESENTING REGISTERED SECURITIES.
(a) Pending the preparation of definitive Registered
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary
19
Registered Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination for Registered Securities
of such series, substantially of the tenor of the definitive Registered
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Registered Securities may determine, as conclusively evidenced by
their execution of such Registered Securities. Every such temporary Registered
Security shall be executed by the Company and shall be authenticated and
delivered by the Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Registered Securities in
lieu of which they are issued.
If temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt Securities
of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series, of a like Stated
Maturity and with like terms and provisions, upon surrender of the temporary
Debt Securities of such series at the office or agency of the Company in a Place
of Payment for such series, without charge to the Holder, except as provided in
Section 3.05 in connection with a transfer. Upon surrender for cancellation of
any one or more temporary Debt Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and like terms and
provisions. Until so exchanged, the temporary Registered Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Registered Securities of such series.
(b) If the Company shall establish pursuant to Section 3.01
that the Registered Securities of a series are to be issued in whole or in part
in the form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 3.03 and the Company Order with
respect to such series, authenticate and deliver one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Notes, (ii)
shall be registered in the name of the Depositary for such Global Note or Notes
or the nominee of such depositary, (iii) shall be delivered by the Trustee to
such Depositary or delivered or held pursuant to such Depositary's instructions,
and (iv) shall bear a legend substantially to the following effect: "This Debt
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary, unless and until
this Debt Security is exchanged in whole or in part for Debt Securities in
definitive form."
Each Depositary designated pursuant to Section 3.01 must, at
the time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Notwithstanding any other provision of this Section or Section
3.05, unless and until a Global Note is exchanged in whole or in part for
Registered Securities in definitive form, a Global Note representing all or a
portion of the Registered Securities of a series may not be transferred except
as a whole by the Depositary for such series to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Debt Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Debt Securities of such series or if at any time the
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good
20
standing under the Exchange Act, or other applicable statute or regulation (as
required by this Section 3.04), the Company shall appoint a successor Depositary
eligible under this Section 3.04 with respect to the Debt Securities of such
series. If a successor Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of one
or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company will execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
If the Registered Securities of any series shall have been
issued in the form of one or more Global Notes and if an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing, the Company will promptly execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with
respect to Registered Securities of a series, the Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
(ii) to the Depositary a new Global Note in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Note and the aggregate principal amount of
Registered Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities
in definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (b)
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
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SECTION 3.05. TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; PROVIDED, HOWEVER, that
the Company may appoint co-Security Registrars at its option.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section
3.05, at the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
(b) All Debt Securities issued upon any transfer or exchange
of Debt Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of
Debt Securities except as provided in Section 3.06. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
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SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN DEBT
SECURITIES.
If (i) any mutilated Debt Security is surrendered to the
Trustee at its Corporate Trust Office, or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Debt Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them and any
Paying Agent harmless, and neither the Company nor the Trustee receives notice
that such Debt Security has been acquired by a bona fide purchaser, then the
Company shall execute and upon Company Request the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Debt Security, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously used with respect to any Debt Securities
Outstanding.
In case any such mutilated, destroyed, lost or stolen Debt
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security in accordance with its terms.
Upon the issuance of any new Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security which is payable and
is punctually paid or duly provided for on any Interest Payment Date shall be
paid to the Person in whose name such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the Regular
Record Date. Unless otherwise specified as contemplated by Section 3.01 with
respect to the Debt Securities of any series, payment of interest on Registered
Securities shall be made at the place or places specified pursuant to Section
3.01 or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address appears in the Security Register or, if
provided pursuant to Section 3.01, by wire transfer to an account designated by
the Registered Holder.
(b) Any interest on any Debt Security which is payable but is
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall, if such Debt Security is a Registered
Security, forthwith cease to be payable to the Registered Holder on the relevant
Regular Record Date by virtue of his having been such Registered Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency unit in
which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.01 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which date shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the Holders of such Registered Securities at their
addresses as they appear in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each
Debt Security delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.08. CANCELLATION.
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Registered Securities so delivered shall be promptly cancelled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation any
Debt Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Debt Securities previously authenticated hereunder which the Company has not
issued, and all Debt Securities so delivered shall be promptly cancelled by the
Trustee. No Debt Securities shall be authenticated in lieu of or in exchange for
any Debt Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Debt Securities held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Debt Securities by the Company shall not operate as a redemption or satisfaction
of the indebtedness represented thereby unless and until such Debt Securities
are surrendered to the
24
Trustee for cancellation. Permanent Global Notes shall not be destroyed until
exchanged in full for definitive Debt Securities or until payment thereon is
made in full.
SECTION 3.09. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.01 for
Debt Securities of any series, interest on the Debt Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.10. CURRENCY OF PAYMENTS IN RESPECT OF DEBT
SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, except as
provided in paragraph (d) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(b) It may be provided pursuant to Section 3.01 with respect
to the Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of
(and premium, if any) and any interest on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has been given by the Company
pursuant to Article Thirteen). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (a) of
this Section 3.10.
(c) If the election referred to in paragraph (b) above has
been provided for pursuant to Section 3.01, then not later than the fourth
Business Day after the Election Date for each payment date, the Trustee will
deliver to the Company a written notice, specifying the Currency in which each
such of the Registered Securities is payable, the respective aggregate amounts
of principal of (and premium, if any) and any interest on the Registered
Securities to be paid on such payment date, specifying the amounts so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, on the second Business Day
preceding each payment date, the Company will deliver to the Trustee an Exchange
Rate Officer's Certificate in respect of the Currency payments to be made on
such payment date. The Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
25
(d) If a Conversion Event occurs with respect to a Foreign
Currency, or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, or such other
Currency unit occurring after the last date on which such Foreign Currency, or
such other Currency unit was used (the "Conversion Date"), the Dollar shall be
the Currency of payment for use on each such payment date. The Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any Paying Agent to
the Holders of such Debt Securities with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency or, in the case of a Currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by
the Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, in the manner provided in paragraph
(f) or (g) below.
(e) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.10.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, and subject to the
provisions of paragraph (h) below, shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation Date with
respect to each payment.
(h) For purposes of this Section 3.10 the following terms
shall have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
unit.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit on the Conversion Date.
If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified
Amount of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single Currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency
shall be divided into two or more Currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or
more Currencies with appropriate Dollar equivalents at the Market
Exchange Rate on the date of such replacement equal to the Dollar
equivalent of the Specified Amount of such former
26
Component Currency at the Market Exchange Rate on such date, and such
amounts shall thereafter be Specified Amounts and such Currencies shall
thereafter be Component Currencies. If after the Conversion Date of the
relevant Currency unit a Conversion Event (other than any event
referred to above in this definition of "Specified Amount") occurs with
respect to any Component Currency of such Currency unit, the Specified
Amount of such Component Currency shall, for purposes of calculating
the Dollar Equivalent of the Currency Unit, be converted into Dollars
at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record
date (if within 16 or fewer days prior to the Maturity) immediately
preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is more
than 16 days prior to the Maturity or any series of Debt Securities for
which no record dates are provided with respect to interest payments,
shall mean the date which is 16 days prior to the Maturity.
(i) All decisions and determinations of the Trustee or the
Currency Determination Agent, if any, regarding the Dollar Equivalent of the
Foreign Currency, the Dollar Equivalent of the Currency Unit and the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company and all Holders of the Debt Securities denominated or payable in the
relevant Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 1.05 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to any Currency
unit in which Debt Securities are denominated or payable, the Company, after
learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give written notice in the manner provided in
Section 1.05 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Currency Determination Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
(j) For purposes of any provision of the Indenture where the
Holders of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
SECTION 3.11. JUDGMENTS.
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any Debt Security,
it shall become necessary to convert into any other Currency any amount in the
Currency due hereunder or under such Debt Security, then such conversion shall
be made at the Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made
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on a date other than the date payment is made and there shall occur a change
between such Market Exchange Rate and the Market Exchange Rate as in effect on
the date of payment, the Company agrees to pay such additional amounts (if any)
as may be necessary to ensure that the amount paid is equal to the amount in
such other Currency which, when converted at the Market Exchange Rate as in
effect on the date of payment or distribution, is the amount then due hereunder
or under such Debt Security. Any amount due from the Company under this Section
3.11 shall be due as a separate debt and is not to be affected by or merged into
any judgment being obtained for any other sums due hereunder or in respect of
any Debt Security. In no event, however, shall the Company be required to pay
more in the Currency or Currency unit due hereunder or under such Debt Security
at the Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion over the amount due and
payable on the date of payment or distribution.
SECTION 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section
12.01, the Company hereby undertakes that upon presentation and surrender of a
permanent Global Note to the Trustee (or to any other Person or at any other
address as the Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the Trustee will
authenticate and deliver to the Holder of such permanent Global Note duly
executed and authenticated definitive Debt Securities with the same issue date
and maturity date as set out in such permanent Global Note.
SECTION 3.13. CUSIP AND ISN NUMBERS.
The Company in issuing the Debt Securities may use "CUSIP" and
"ISN" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" and "ISN" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
accuracy of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any change in the
"CUSIP" or "ISN" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of any
series (if all series issued under this Indenture are not to be affected),
shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Debt Securities
herein expressly provided for and rights to receive payments of principal (and
premium, if any) and interest on such Debt Securities) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) Either
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(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) Debt Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, and (ii) Debt Securities
of such series for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 12.04) have been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the
giving of notice by the Trustee in the name, and at
the expense, of the Company,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.01, or if not so specified in the case
of (i), (ii) or (iii) of this subclause (B), has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount in the Currency in which such Debt Securities
are denominated (except as otherwise provided pursuant to Section 3.01
or 3.10) sufficient to pay and discharge the entire indebtedness on
such Debt Securities for principal (and premium, if any) and interest
to the date of such deposit (in the case of Debt Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be; PROVIDED, HOWEVER, in the event a petition for
relief under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the Company
within 91 days after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of the Company
under this Indenture with respect to such Debt Securities shall not be
deemed terminated or discharged;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with; and
(4) the Company has delivered to the Trustee an Opinion of
Counsel or a ruling by the Internal Revenue Service to the effect that
Holders of the Debt Securities of the series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in
29
Section 4.01 has been made, (x) the Holder of a Debt Security is entitled to,
and does, elect pursuant to Section 3.10(b), to receive payment in a Currency
other than that in which the deposit pursuant to Section 4.01 was made, or (y)
if a Conversion Event occurs with respect to the Currency in which the deposit
was made or elected to be received by the Holder pursuant to Section 3.10(b),
then the indebtedness represented by such Debt Security shall be fully
discharged to the extent that the deposit made with respect to such Debt
Security shall be converted into the Currency in which such payment is made.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
12.04, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt
Security of such series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (and premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been
included in this Indenture solely for the benefit of Debt Securities of
a series other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
30
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other
similar law, or the consent by it to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) plus accrued and unpaid interest (and premium, if
payable) shall become immediately due and payable. Upon payment of such amount
in the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 3.01 or 3.10), all obligations of the
Company in respect of the payment of principal of the Debt Securities of such
series shall terminate.
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Section 3.01 or 3.10) sufficient to
pay
(A) all overdue installments of interest on all Debt
Securities of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed
therefor in such Debt Securities,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest on each Debt Security of such series at the
Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; PROVIDED, HOWEVER, that all sums payable
under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Debt Security when such interest becomes due and
payable and such default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities, the amount then due and payable on such Debt
Securities, for the principal (and premium, if any) and interest, if any, and,
to the extent that payment of such interest shall be legally enforceable,
interest upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at the Overdue Rate; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Debt
Securities, and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Debt Securities wherever situated.
If an Event of Default with respect to Debt Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Debt Securities
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any
32
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Debt Securities of a particular series or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of such Debt Securities shall
then be due and payable as therein expressed or by declaration of acceleration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are Discount
Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in
accordance with Section 5.02) (and premium, if any) and interest owing
and unpaid in respect of the Debt Securities of such 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 the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of such Debt
Securities allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of such series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBT SECURITIES.
All rights of action and claims under this Indenture or the
Debt Securities of any series may be prosecuted and enforced by the Trustee
without the possession of any of such Debt Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities in respect of which such judgment has been recovered.
33
SECTION 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(and premium, if any) or interest, upon presentation of the Debt Securities of
any series in respect of which money has been collected and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07.
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
of such series, in respect of which or for the benefit of which such
money has been collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities
for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Debt Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities of any other series, or
to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
For the protection and enforcement of the provisions of this Section 5.07, each
and every Holder of Debt Securities of any series and the Trustee for such
series shall be entitled to such relief as can be given at law or in equity.
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SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Debt Security on the respective
Stated Maturity or Maturities expressed in such Debt Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment and interest thereon, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this
Indenture, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
35
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities of any series may on behalf of the
Holders of all the Debt Securities of any such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the
Debt Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Debt Securities of such series under this Indenture, but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Debt Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee 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 Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security for the enforcement of the payment of the principal of
(or premium, if any) or interest on such Debt Security on or after the
respective Stated Maturity or Maturities expressed in such Debt Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company 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 Company (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.
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the Trustee shall, with
respect to the Debt Securities of such series, exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series 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; and
(4) the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities of any series, the Trustee shall give notice to
all Holders of Debt Securities of such series of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Debt Security of such series or in
the payment of any sinking fund installment with respect to Debt Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders of Debt
Securities of such series; and PROVIDED, FURTHER, that in the case of any
default of the character specified in Section 5.01(4) with respect to Debt
Securities of such series no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of such
series.
Notice given pursuant to this Section 6.02 shall be
transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a) of this Indenture.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent (including any agent appointed pursuant
to Section 3.10(i)) or attorney appointed with due care by it hereunder.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities, and, subject to Sections 6.08 and 6.13,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent
in trust hereunder need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the trustee in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
39
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim prior to the Debt
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of amounts due on the Debt
Securities.
The obligations of the Company under this Section 6.07 to
compensate and indemnify the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness under this Indenture and shall survive
the satisfaction and discharge of this Indenture.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section with respect to the Debt Securities of any
series, then, within 90 days after ascertaining that it has such conflicting
interest, and if the default (as hereinafter defined) to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided below, resign with respect
to the Debt Securities of such series, and the Company shall take prompt steps
to have a successor appointed, in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section with respect to the Debt
Securities of any series, the Trustee shall, within 10 days after the expiration
of such 90-day period, transmit to all Holders of Debt Securities of such series
notice of such failure.
Notice given pursuant to this Section 6.08(b) shall be
transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a) of this Indenture.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Debt Securities of any
series, if there shall exist an Event of Default (as such term is defined
herein, but exclusive of any period of grace or requirement of notice) with
respect to such Debt Securities and
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Debt Securities of any series other than that series
or is trustee under another indenture under which any other securities,
or certificates of interest or participation in any other securities,
of the Company are outstanding, unless such other indenture is a
collateral trust indenture under which
40
the only collateral consists of Debt Securities issued under this
Indenture, provided that there shall be excluded from the operation of
this paragraph this Indenture with respect to the Debt Securities of
any series other than that series and any other indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally and such other indenture
or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c)
of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to the Debt
Securities of such series and one or more other series or the
provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make
it necessary, in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Debt Securities of such
series and such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Debt Securities of such series
and such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debt Securities of
such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Company, or of an underwriter (other than the Trustee itself)
for the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or an
executive officer, or both, of the Company but may not be at the same
time an executive officer of both the Trustee and the Company; (ii) if
and so long as the number of directors of the Trustee in office is more
than nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary or in any other similar capacity, or, subject to the
provisions of paragraph (l) of this subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such persons;
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(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Debt Securities issued under this Indenture
and securities issued under any other indenture under which the Trustee
is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default or
any anniversary of such Event of Default while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of not more
than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after
the dates of any such Event of Default and annually in each succeeding
year that such Event of Default continues, the Trustee shall make a
check of its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of (or premium, if any) or interest on any of the
Debt Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; PROVIDED, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is
42
or is not necessary or sufficient to constitute direct or indirect control for
the purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time,
or has participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a participation in
the direct or indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate,
an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
43
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount", when used with regard to securities
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal
or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
PROVIDED, HOWEVER, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; PROVIDED,
HOWEVER, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and PROVIDED,
FURTHER, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Debt Security of any series, or in the payment
of any sinking or purchase fund installment, the Trustee shall not be required
to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
44
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
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, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Debt Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series and a successor Trustee appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer
45
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Debt Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, subject to
Section 5.14, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name of
the successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, each such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee,
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall
46
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities of
that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Debt Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in any such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any other trust or trusts
hereunder administered by any other such Trustee; and upon the execution and
delivery of any such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Debt
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Debt
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debt Securities. In case any Debt Securities shall
not have been authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such default, then, unless and
until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the
47
Trustee individually, the Holders of the Debt Securities and the holders of
other indenture securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, SUBJECT, HOWEVER, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings or
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months, or
(D) to receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of
48
other indenture securities in such manner that the Trustee, the Holders and the
holders of other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted or any other applicable
Federal or State bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee and the Holders and the holders
of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the Lien
of this Indenture or of discharging tax liens or other prior liens or
49
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Debt Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
(3) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks and payable upon demand.
(4) The term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, ▇▇▇▇ of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt
Securities.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain Outstanding,
upon a Company Request, there shall be an authenticating agent (the
"Authenticating Agent") appointed, for such period as the
50
Company shall elect, by the Trustee for such series of Debt Securities to act as
its agent on its behalf and subject to its direction in connection with the
authentication and delivery of each series of Debt Securities for which it is
serving as Trustee. Debt Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by such
Trustee. Wherever reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series by the Trustee for such series or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee for such series by
an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent, except that
only the Trustee may authenticate Debt Securities upon original issuance and
pursuant to Section 3.06 hereof. 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, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $10,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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 business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Debt 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 for such series or such
Authenticating Agent. Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of resignation to
the applicable Trustee and to the Company.
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 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon a Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Trustee for the Debt Securities of such series agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee for such series.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
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This is one of the series of Debt Securities issued under the
within mentioned Indenture.
---------------------------
---------------------------
As Trustee
By:
------------------------
As Authenticating Agent
By:
------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee with respect to Registered Securities of each series for which it acts
as Trustee:
(a) semi-annually on a date not more than 15 days after each
Regular Record Date with respect to an Interest Payment Date, if any, for the
Registered Securities of such series (or on semi-annual dates in each year to be
determined pursuant to Section 3.01 if the Registered Securities of such series
do not bear interest), a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Registered Holders as of the date 15
days next preceding each such Regular Record Date (or such semi-annual dates, as
the case may be); and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; PROVIDED, HOWEVER, that if and so long as the Trustee
shall be the Security Registrar for such series, no such list need be furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 received by it in the capacity of Paying Agent (if so acting)
hereunder.
The Trustee may destroy any list furnished to it as provided
in Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, and destroy
any list delivered to itself as Trustee which was compiled from
52
information received by it as Paying Agent (if so acting) hereunder upon the
receipt of a new list so delivered.
(b) If three or more Holders (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 Debt 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 Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), or
(ii) inform such applicants as to the approximate number
of Holders of Debt Securities of such series or of all Debt
Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee
in accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon written request of such
applicants, mail to the Holders of Debt Securities of such series or all
Holders, as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02(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 Debt Securities of such series or all Holders, 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) Every Holder of Debt Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.02(b).
53
SECTION 7.03. REPORTS BY TRUSTEE.
(a) Within 60 days after ________ of each year, commencing
_______ __, 200_, the Trustee shall, to the extent required by the Trust
Indenture Act, transmit to all Holders of Debt Securities of any series with
respect to which it acts as Trustee, in the manner hereinafter provided in this
Section 7.03, a brief report dated such date with respect to any of the
following events which may have occurred within the previous 12 months (but if
no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt 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 Outstanding Debt
Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other obligor on
the Debt Securities of such series) 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 an indebtedness
based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02 (a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt 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, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at
54
any time aggregate 10% or less of the principal amount of the Debt 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 7.03 shall be transmitted
by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register; and
(2) except in the cases of reports pursuant to subsection (b)
of this Section 7.03, to each Holder of a Debt Security of any series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
Section 7.04. REPORTS BY COMPANY.
Unless otherwise specified with respect to a particular series
of Debt Securities pursuant to Section 3.01, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (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 Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended.
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall continue to file with the Commission and
provide the Trustee and the Holders of each series of Debt Securities
with, without cost to each Holder, (a) within 90 days after the end of
each fiscal year, annual reports on Form 10-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in such successor or comparable form); (b) within
45 days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or comparable
form); and (c) promptly from time to time after the occurrence of an
event required to be therein reported, such other reports on Form 8-K
(or any successor or comparable form) containing the information
required (other than pursuant to Item 9 of such report) to be contained
therein (or required in any successor or comparable form); PROVIDED,
HOWEVER, that the Company shall not be obligated to file such reports
with the Commission if the Commission does not permit such filings. The
Company will in all cases, without cost to each recipient, provide
copies of such information to the Holders of the Debt Securities of
each series and, if they are not permitted to file such reports with
the Commission, shall make available information to prospective
purchasers and to securities analysts and broker-dealers upon their
request;
(2) 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 Company with the conditions and
55
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner
and to the extent provided in Section 7.03, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by 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, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Outstanding Debt Securities of any series may take any Act, the
fact that the Holders of such specified percentage have joined therein may be
evidenced (a) by the instrument or instruments executed by Holders in person or
by agent or proxy appointed in writing, or (b) by the record of Holders voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders.
SECTION 8.02. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF
INSTRUMENTS BY HOLDER.
The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Registrar for such series.
Subject to the provisions of Sections 6.01, 6.03 and 9.05,
proof of the execution of any instrument by a Holder or such Holder's agent
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
The record of any Holders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section so long as the request
is a reasonable one.
SECTION 8.03. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Registered Security is registered
as the owner of such Registered Security for the purpose of receiving payment of
the principal of (and premium, if any) and (subject to Section 3.07)
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interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Debt Security.
SECTION 8.04. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any Act by the Holders of
the percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.08, upon
all future Holders of such Debt Security and of any Debt Securities issued on
transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or such other Debt Securities.
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.01. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Nine for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in Section 9.01, to be held
at such time or times and at such place or places as the Trustee for such series
shall determine. Notice of every meeting of the Holders of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such
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meeting, shall be given to Holders of such series in the manner and to the
extent provided in Section 1.05. Such notice shall be given not less than 10
days nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Debt Securities of a series or of all series, as the case may be,
shall have requested the Trustee for such series to call a meeting of Holders of
any or all such series by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have given
the notice of such meeting within 10 days after the receipt of such request,
then the Company or such Holders may determine the time or times and the place
or places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section
9.02.
SECTION 9.04. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a Person
shall be (a) a Holder of a Debt Security of the series with respect to which
such meeting is being held or (b) a Person appointed by an instrument in writing
as agent or proxy by such Holder. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
for the series with respect to which such meeting is being held and its counsel
and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the
Trustee for any series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of such series, in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies, and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of such series as provided in Section 9.03, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at
any meeting each Holder of a Debt Security of the series with respect to which
such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
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SECTION 9.06. VOTING.
The vote upon any resolution submitted to any meeting of
Holders with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Debt Securities
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be taken and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was transmitted as provided
in Section 9.02. The record shall show the serial numbers of the Debt Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 9.07. NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or of the Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge with or into
or wind up into (whether or not the Company is the surviving corporation) or
sell, assign, convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "successor corporation") shall be a
corporation organized and existing under the laws of the United States
or any State or territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(4) such other conditions as may be specified under Section
3.01 with respect to any series of Debt Securities.
SECTION 10.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 10.01,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
rights of the Company and the assumption by such successor of the
covenants of the Company contained herein and in the Debt Securities;
or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities (and if such
covenants are to be for the benefit of less than all series, stating
that such covenants are expressly being included solely for the benefit
of such series), or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Outstanding Debt Security of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision and as to which such
supplemental indenture would apply; or
(5) to secure the Debt Securities or to provide that any of
the Company's obligations under any series of the Debt Securities shall
be guaranteed and the terms and conditions for the release or
substitution of such security or guarantee; or
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(6) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Debt Securities pursuant to
Article Four or Fifteen, PROVIDED that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(7) to establish the form or terms of Debt Securities of any
series as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt 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,
pursuant to the requirements of Section 6.11; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with any provision of this Indenture;
PROVIDED such other provisions shall not adversely affect the interests
of the Holders of Outstanding Debt Securities of any series created
prior to the execution of such supplemental indenture in any material
respect.
Section 11.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the written consent of the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of each series
affected by such supplemental indenture voting separately, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to any series
of Debt Securities pursuant to Section 3.01, (a) change the Stated
Maturity of the principal of, or installment of interest, if any, on,
any Debt Security, or reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof
(provided that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or change the
Stated Maturity of, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of a
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or
reduce the amount of, or postpone the date fixed for, any payment under
any sinking fund or analogous provisions for any Debt Security, or
impair the right to institute suit for the enforcement of any payment
on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or adversely affect the right to
convert any Debt Security into shares of Common Shares of the Company
as may be provided pursuant to Section 3.01; or
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(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(4) modify any of the provisions of this Section, Section 5.13
or Section 12.06, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security of each series 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 and Section 12.06, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and
11.01(6); or
(5) modify any of the provisions of this Indenture relating to
the subordination of the Debt Securities in a manner adverse to the
Holders.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture with respect to one or more
particular series of Debt Securities or which modifies the rights of the Holders
of Debt Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Debt securities of any other series.
SECTION 11.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise in a material way.
SECTION 11.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 11.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 11.06. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation
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in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debt Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities of such series.
SECTION 11.07. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to Section 11.02, the
Company shall transmit, in the manner and to the extent provided in Section
1.05, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental
indenture.
ARTICLE TWELVE
COVENANTS
SECTION 12.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of,
and premium, if any, and interest on, each of the Debt Securities at the place,
at the respective times and in the manner provided herein. Each installment of
interest on the Debt Securities may at the Company's option be paid by mailing
checks for such interest payable to the Person entitled thereto to the address
of such Person as it appears on the Security Register.
SECTION 12.02. OFFICER'S CERTIFICATE AS TO DEFAULT.
Unless otherwise specifically provided for with respect to any
series of Debt Securities under Section 3.01, the Company will deliver to the
Trustee, on or before a date not more than four months after the end of each
fiscal year of the Company (which on the date hereof is the calendar year)
ending after the date hereof, a certificate of the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating whether or not to the best knowledge of the signer thereof the Company
is in compliance with all covenants and conditions under this Indenture, and, if
the Company shall be in default, specifying all such defaults and the nature
thereof of which such signer may have knowledge. For purposes of this Section,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 12.03. MAINTENANCE OF OFFICE OR AGENCY.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities of that series
that are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all presentations, surrenders,
notices and demands.
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The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 12.04. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD
IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the Debt
Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities, it will, by or on each due date of the
principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; 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.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company upon Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all
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liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
transmitted in the manner and to the extent provided by Section 1.05, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 12.05. CORPORATE EXISTENCE.
Subject to Article Ten, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
SECTION 12.06. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 12.05 (and, if so
specified pursuant to Section 3.01, any other covenant not set forth herein and
specified pursuant to Section 3.01 to be applicable to the Securities of any
series, except as otherwise provided pursuant to Section 3.01) with respect to
the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
SECTION 13.01. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before
their Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any series)
in accordance with this Article.
SECTION 13.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case of
Discount Securities, to permit the Holders to elect to surrender for redemption)
any Debt Securities shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Debt
Securities of any series pursuant to Section 13.03, the Company shall, at least
30 days before the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Debt Securities of such series to be
redeemed. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restrictions.
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SECTION 13.03. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED.
Except in the case of a redemption in whole of Registered
Securities of such series, if less than all the Debt Securities of any series
are to be redeemed at the election of the Company, the particular Debt
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.02 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.02 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt security which has
been or is to be redeemed.
SECTION 13.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
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(4) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date,
(6) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
SECTION 13.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date for any Debt Securities,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01) sufficient to pay the Redemption Price of such Debt Securities or
any portions thereof which are to be redeemed on that date.
SECTION 13.06. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; PROVIDED, HOWEVER, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.07.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 13.07. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 3.01 with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered. In the case of a Debt
Security providing appropriate space for such notation, at the option of the
Holder thereof, the
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Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
SECTION 14.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt 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 Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.02. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 14.02. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS
WITH DEBT SECURITIES.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option, at any time no more than sixteen months and no less than 45 days
prior to the date on which such sinking fund payment is due, deliver to the
Trustee Debt Securities of such series theretofore purchased or otherwise
acquired by the Company, except Debt Securities of such series which have been
redeemed through the application of mandatory sinking fund payments pursuant to
the terms of the Debt Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the Debt
Securities of such series were originally issued by the Company by way of bona
fide sale or other negotiation for value, PROVIDED that such Debt Securities
shall not have been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 14.03. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency or Currencies in
which the Debt Securities of such series are denominated (except as provided
pursuant to Section 3.01) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of such series pursuant to
Section 14.02 and whether the Company intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment due
on the next succeeding sinking fund payment date for such series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of the
Debt Securities of such series subject to a mandatory
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sinking fund payment without the right to deliver or credit Debt Securities as
provided in Section 14.02 and without the right to make any optional sinking
fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Debt Securities of any particular series shall be applied by
the Trustee (or by the Company if the Company is acting as its own Paying Agent)
on the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment
date immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) for such series and, together with such payment (or such amount
so segregated) shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys with respect to the Debt Securities of
any particular series held by the Trustee (or if the Company is acting as its
own Paying Agent, segregated and held in trust as provided in Section 12.04) on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
of such series shall be applied by the Trustee (or by the Company if the Company
is acting as its own Paying Agent), together with other moneys, if necessary, to
be deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 13.03 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 13.04. Such notice having
been duly given, the redemption of such Debt Securities shall be made upon the
terms and in the manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall
pay to the Trustee (or, if the Company is acting as its own Paying Agent, the
Company shall segregate and hold in trust as provided in Section 12.04) in cash
a sum, in the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.01 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Company shall redeem any Debt
Securities of a series with sinking fund moneys or mail any notice of redemption
of Debt Securities of such series by operation of the sinking fund for such
series during the continuance of a default in payment of interest, if any, on
any Debt Securities of such series or of any Event of Default (other than an
Event of Default occurring as a consequence of this paragraph) with respect to
the Debt Securities of such series, except that if the notice of redemption
shall have been provided in accordance with the provisions hereof, the Trustee
(or the Company, if the Company is then acting as its own Paying Agent) shall
redeem such Debt Securities if cash sufficient for that purpose shall be
deposited with the Trustee (or segregated by the Company) for that purpose in
accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of the Debt Securities of such series; PROVIDED, HOWEVER, that
in case such default or Event of Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on or prior to the next
sinking fund payment date for the Debt Securities of such series on which such
moneys may be applied pursuant to the provisions of this Section.
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ARTICLE FIFTEEN
DEFEASANCE
SECTION 15.01. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.01, provision is made for the
defeasance of Debt Securities of a series, and if the Debt Securities of such
series are Registered Securities and denominated and payable only in Dollars
(except as provided pursuant to Section 3.01) then the provisions of this
Article shall be applicable except as otherwise specified pursuant to Section
3.01 for Debt Securities of such series. Defeasance provisions, if any, for Debt
Securities denominated in a Foreign Currency or Currencies may be specified
pursuant to Section 3.01.
SECTION 15.02. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S.
GOVERNMENT OBLIGATIONS.
At the Company's option, either (a) the Company shall be
deemed to have been Discharged (as defined below) from its obligations with
respect to Debt Securities of any series ("legal defeasance option") or (b) the
Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Section 10.01 with respect to Debt
Securities of any series (and, if so specified pursuant to Section 3.01, any
other obligation of the Company or restrictive covenant added for the benefit of
such series pursuant to Section 3.01) ("covenant defeasance option") at any time
after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest
on, the Outstanding Debt Securities of such series on the dates such
installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as
defined in Section 6.08 and for purposes of the Trust Indenture Act
with respect to the Debt Securities of any series;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the
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legal defeasance option only, no Event of Default under Section 5.01(7) or
Section 5.01(8) or event which with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 5.01(7) or Section 5.01(8)
shall have occurred and be continuing on the 91st day after such date; and
(6) the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling from the Internal Revenue Service to the effect
that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(7) or Section 5.01(8) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(7) or Section 5.01(8) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated. Money and securities held
in trust pursuant to a legal defeasance shall not be subject to Article Sixteen.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 12.03 and 15.03 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States for the payment of which its full faith
and credit is pledged, or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
SECTION 15.03. DEPOSITED MONEYS AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST.
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 15.02 in respect of Debt Securities of a series
shall be held in trust and applied by it, in accordance with the provisions of
such Debt Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Debt Securities, of all
sums due and to become due thereon for principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
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SECTION 15.04. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return
to the Company upon Company Request any moneys or U.S. Government Obligations
held by them at any time that are not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.02.
The provisions of the last paragraph of Section 12.04 shall
apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 16.01. AGREEMENT TO SUBORDINATE.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Debt Securities by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any) and interest on each and all of the Debt Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 16.02. DISTRIBUTION ON DISSOLUTION, LIQUIDATION AND
REORGANIZATION; SUBROGATION OF DEBT SECURITIES.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company, whether
in bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Indebtedness and the holders thereof
with respect to the Debt Securities and the Holders thereof by a plan of
reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Debt Securities are entitled to
receive any payment upon the principal (and premium, if any) or interest on
indebtedness evidenced by the Debt Securities; and
(b) any payment or distribution of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Debt Securities or the Trustee would be entitled except for the provisions of
this Article Sixteen shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior
72
Indebtedness remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or the
Holders of the Debt Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid over, upon written notice to the
Trustee, to the holder of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
instrument evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Debt Securities shall be subrogated to the rights of the holders
of Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest on the Debt Securities shall be paid in
full and no such payments or distributions to the Holders of the Debt Securities
of cash, property, or securities otherwise distributable to the holders of
Senior Indebtedness shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Debt Securities be deemed
to be a payment by the Company to or on account of the Debt Securities. It is
understood that the provisions of this Article Sixteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Debt Securities, on the one hand, and the holders of the Senior Indebtedness, on
the other hand. Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Debt Securities, the obligation of the Company, which is
unconditional and absolute, to pay to the Holders of the Debt Securities the
principal of (and premium, if any) and interest on the Debt Securities as and
when the same shall become due and payable in accordance with their terms, or to
affect the relative rights of the Holders of the Debt Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall anything
herein or in the Debt Securities prevent the Trustee or the Holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Sixteen of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to in this Article
Sixteen, the Trustee, subject to the provisions of Sections 6.01 and 6.03, shall
be entitled to rely upon a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent to this Article Sixteen.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness. The Trustee shall not be liable to
any such holder if it shall pay or distribute to or on behalf of Holders of Debt
Securities or the Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Sixteen.
If the Trustee or any Holder of Debt Securities does not file
a proper claim or proof of debt in the form required in any proceeding referred
to above prior to 30 days before the expiration of the time to file such claim
in such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for or on
behalf of such Holder of Debt Securities.
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SECTION 16.03. NO PAYMENT ON DEBT SECURITIES IN EVENT OF
DEFAULT ON SENIOR INDEBTEDNESS.
No payment by the Company on account of principal (or premium,
if any), sinking funds or interest on the Debt Securities shall be made unless
full payment of amounts then due for principal, premium, if any, sinking funds,
and interest on Senior Indebtedness has been made or duly provided for.
SECTION 16.04. PAYMENTS ON DEBT SECURITIES PERMITTED.
Nothing contained in this Indenture or in any of the Debt
Securities shall (a) affect the obligation of the Company to make, or prevent
the Company from making, at any time except as provided in Sections 16.02 and
16.03, payments of principal (and premium, if any) or interest of the Debt
Securities or (b) prevent the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest on the Debt Securities, unless the Trustee shall
have received at its Corporate Trust Office written notice of any event
prohibiting the making of such payment more than two Business Days prior to the
date fixed for such payment.
SECTION 16.05. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Debt Securities by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article Sixteen and appoints the Trustee his attorney-in-fact for any and all
such purposes.
SECTION 16.06. NOTICES TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Debt Securities. Failure to give such notice
shall not affect the subordination of the Debt Securities to Senior
Indebtedness. Notwithstanding the provisions of this Article or any other
provisions of this Indenture, neither the Trustee nor any Paying Agent (other
than the Company) shall be charged with knowledge of the existence of any Senior
Indebtedness or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received (in the case of the Trustee, at its
Corporate Trust Office) written notice thereof from the Company or from the
holder of any Senior Indebtedness or from the trustee for any such holder,
together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee; provided, however, that if at
least two Business Days prior to the date upon which by the terms hereof any
such moneys may become payable for any purpose (including, without limitation,
the payment of either the principal (and premium, if any) or interest on any
Debt Security) the Trustee shall not have received with respect to such moneys
the notice provided for in this Section 16.06, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such moneys 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 within two Business Days prior to such date. 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 trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a 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 payment or distribution pursuant to this
Article Sixteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other
74
facts pertinent to the rights of such Person under this Article Sixteen and, if
such evidence is not furnished, the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
SECTION 16.07. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Sixteen 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.
Nothing in this Article shall apply to claims, of, or payments
to, the Trustee under or pursuant to Section 6.07.
SECTION 16.08. MODIFICATION OF TERMS OF SENIOR INDEBTEDNESS.
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Debt Securities or
the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Debt Securities relating to the subordination thereof.
SECTION 16.09. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATION AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article Sixteen, the Trustee and the Holders of the Debt
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which each insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Debt Securities, for the purpose of ascertaining
the persons entitled to participate in such payment or distribution, the holders
of Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable therein, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Sixteen.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Debt Securities by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any) and interest on each and all of the Debt Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
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ARTICLE SEVENTEEN
CONVERSION
SECTION 17.01. APPLICABILITY; CONVERSION PRIVILEGE.
Except as otherwise specified pursuant to Section 3.01 for
Debt Securities of any series, the provisions of this Article Seventeen shall be
applicable to any Debt Securities that are convertible into Common Shares. If so
provided pursuant to Section 3.01 with respect to the Debt Securities of any
series, the Holder of a Debt Security of such series shall have the right, at
such Holder's option, to convert, in accordance with the terms of such series of
Debt Securities and this Article Seventeen, all or any part (in a denomination
of, unless otherwise specified pursuant to Section 3.01 with respect to Debt
Securities of such series, (1) $1,000 in principal amount or any integral
multiple thereof or (2) in the case of Debt Securities denominated in a Foreign
Currency, in a denomination equal to $1,000 or an integral multiple thereof
based on the Market Exchange Rate) of such Debt Security into shares of Common
Shares or, as to any Debt Securities called for redemption, at any time prior to
the time and date fixed for such redemption (unless the Company shall default in
the payment of the Redemption Price, in which case such right shall not
terminate at such time and date).
SECTION 17.02. CONVERSION PROCEDURE; CONVERSION PRICE;
FRACTIONAL SHARES.
(a) Each Debt Security to which this Article is applicable
shall be convertible at the office of the Conversion Agent, and at such other
place or places, if any, specified in pursuant to Section 3.01 with respect to
the Debt Securities of such series, into fully paid and nonassessable shares
(calculated to the nearest 1/100th of a share) of Common Shares. The Debt
Securities will be converted into shares of Common Shares at the Conversion
Price therefor. No payment or adjustment shall be made in respect of dividends
on the Common Shares or accrued interest on a converted Debt Security except as
described in Section 17.09. The Company may, but shall not be required, in
connection with any conversion of Debt Securities, to issue a fraction of a
share of Common Shares and, if the Company shall determine not to issue any such
fraction, the Company shall, subject to Section 17.03(4), make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the
Closing Price of the Common Shares on the last Trading Day prior to the date of
conversion.
(b) Before any Holder of a Debt Security shall be entitled to
convert the same into Common Shares, such Holder shall surrender such Debt
Security duly endorsed to the Company or in blank at the office of the
Conversion Agent or at such other place or places, if any, specified pursuant to
Section 3.01, and shall give written notice to the Company at said office or
place that he elects to convert the same and shall state in writing therein the
principal amount of Debt Securities to be converted and the name or names (with
addresses) in which he wishes the certificate or certificates for Common Shares
to be issued; provided, however, that no Debt Security or portion thereof shall
be accepted for conversion unless the principal amount of such Debt Security or
such portion, when added to the principal amount of all other Debt Securities or
portions thereof then being surrendered by the Holder thereof for conversion,
exceeds the then effective Conversion Price with respect thereto. If more than
one Debt Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Shares which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Debt Securities (or specified portions thereof to the extent permitted
thereby) so surrendered. Subject to the next succeeding sentence, the Company
will, as soon as practicable thereafter, issue and deliver at said office or
place to such Holder of a Debt Security, or to his nominee or nominees,
certificates for the number of full shares of Common Shares to which he shall be
entitled as aforesaid, together, subject to the last sentence of paragraph (a)
above, with cash in lieu of any fraction of a share to which he would otherwise
be entitled. The Company shall not be required to deliver certificates for
shares
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of Common Shares while the stock transfer books for such stock or the Security
Register are duly closed for any purpose, but certificates for shares of Common
Shares shall be issued and delivered as soon as practicable after the opening of
such books or Security Register. A Debt Security shall be deemed to have been
converted as of the close of business on the date of the surrender of such Debt
Security for conversion as provided above, and the Person or Persons entitled to
receive the Common Shares issuable upon such conversion shall be treated for all
purposes as the record Holder or Holders of such Common Shares as of the close
of business on such date. In case any Debt Security shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall authenticate
and deliver to or upon the written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
17.08), a new Debt Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Debt Security.
SECTION 17.03. ADJUSTMENT OF CONVERSION PRICE FOR COMMON
SHARES.
The Conversion Price with respect to any Debt Security which
is convertible into Common Shares shall be adjusted from time to time as
follows:
(1) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common Shares to holders of Common Shares,
(ii) combine its outstanding shares of Common Shares into a smaller
number of shares of Common Shares, (iii) subdivide its outstanding
shares of Common Shares into a greater number of shares of Common
Shares or (iv) make a distribution in shares of Common Shares to
holders of Common Shares, then the Conversion Price in effect
immediately before such action shall be adjusted so that the Holders of
such Debt Securities, upon conversion thereof into Common Shares
immediately following such event, shall be entitled to receive the kind
and amount of shares of capital stock of the Company which they would
have owned or been entitled to receive upon or by reason of such event
if such Debt Securities had been converted immediately before the
record dated (or, if no record date, the effective date) for such
event. An adjustment made pursuant to this Section 17.03(1) shall
become effective retroactively immediately after the record date in the
case of a dividend or distribution and shall become effective
retroactively immediately after the effective date in the case of a
subdivision or combination. For the purposes of this Section 17.03(1),
each Holder of Debt Securities shall be deemed to have failed to
exercise any right to elect the kind or amount of securities receivable
upon the payment of any such dividend, subdivision, combination or
distribution (provided that if the kind or amount of securities
receivable upon such dividend, subdivision, combination or distribution
is not the same for each nonelecting share, then the kind and amount of
securities or other property receivable upon such dividend,
subdivision, combination or distribution for each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares).
(2) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, issue rights or
warrants to all holders of shares of its Common Shares entitling them
(for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Shares (or
securities convertible into shares of Common Shares) at a price per
share less than the Current Market Price of the Common Shares at such
record date (treating the price per share of the securities convertible
into Common Shares as equal to (x) the sum of (i) the price for a unit
of the security convertible into Common Shares and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Shares divided by (y) the number of shares of Common Shares
initially underlying such convertible security), the Conversion Price
with respect to such Debt Securities shall be adjusted so that it shall
equal the price determined by dividing the Conversion Price in effect
immediately
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prior to the date of issuance of such rights or warrants by a fraction,
the numerator of which shall be the number of shares of Common Shares
outstanding on the date of issuance of such rights or warrants plus the
number of additional shares of Common Shares offered for subscription
or purchase (or into which the convertible securities so offered are
initially convertible), and the denominator of which shall be the
number of shares of Common Shares outstanding on the date of issuance
of such rights or warrants plus the number of shares of additional
shares of Common Shares which the aggregate offering price of the total
number of shares of securities so offered for subscription or purchase
(or the aggregate purchase price of the convertible securities so
offered plus the aggregate amount of any additional consideration
initially payable upon conversion of such securities into Common
Shares) would purchase at such Current Market Price of the Common
Shares. Such adjustment shall become effective retroactively
immediately after the record date for the determination of shareholders
entitled to receive such rights or warrants.
(3) In the case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, distribute to
all holders of shares of its Common Shares (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and the Common Shares are not
changed or exchanged) cash, evidences of its indebtedness, securities
or assets (excluding (i) regular periodic cash dividends in amounts, if
any, determined from time to time by the Board of Directors, (ii)
dividends payable in shares of Common Shares for which adjustment is
made under Section 17.03(1) or (iii) rights or warrants to subscribe
for or purchase securities of the Company (excluding those referred to
in Section 17.03(2))), then in each such case the Conversion Price with
respect to such Debt Securities determined by dividing the Conversion
Price in effect immediately prior to the date of such distribution by a
fraction, the numerator of which shall be the Current Market Price of
the Common Shares on the record date referred to below, and the
denominator of which shall be such Current Market Price of the Common
Shares less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of
the portion of the cash or assets or evidences of indebtedness or
securities so distributed or of such subscription rights or warrants
applicable to one share of Common Shares (provided that such
denominator shall never be less than 1.0); provided however, that no
adjustment shall be made with respect to any distribution of rights to
purchase securities of the Company if a Holder of Debt Securities would
otherwise be entitled to receive such rights upon conversion at any
time of such Debt Securities into Common Shares unless such rights are
subsequently redeemed by the Company, in which case such redemption
shall be treated for purposes of this section as a dividend on the
Common Shares. Such adjustment shall become effective retroactively
immediately after the record date for the determination of shareholders
entitled to receive such distribution; and in the event that such
distribution is not so made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 17.03(1), 17.03(2), and 17.03(3), as shall be necessary in
order that any dividend or distribution of Common Shares, any
subdivision, reclassification or combination of shares of Common Shares
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Shares for United States Federal
income tax purposes.
(5) In any case in which this Section 17.03 shall require that
any adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five (5) Trading Days following the filing of the statement referred to
in Section 17.05) issuing to the Holder of any Debt Securities
converted after such record date the
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shares of Common Shares and other capital stock of the Company issuable
upon such conversion over and above the shares of Common Shares and
other capital stock of the Company issuable upon such conversion on the
basis of the Conversion Price prior to adjustment; provided, however,
that the Company shall deliver to such Holder a due ▇▇▇▇ or other
appropriate instrument evidencing such Holder's right to receive such
additional shares upon the occurrence of the event requiring such
adjustment.
(6) All calculations under this Section 17.03 shall be made to
the nearest cent or one-hundredth of a share of security, with one-half
cent and 0.005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 16.03, the Company
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lesser adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1%
in such price. Any adjustments under this Section 17.03 shall be made
successively whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 17.03, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Shares into which the Debt Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Shares contained in subparagraphs (1)
through (6) of this Section 17.03, and the provisions of Sections
17.01, 17.02 and 17.04 through 17.09 with respect to the Common Shares
shall apply on like or similar terms to any such other shares and the
determination of the Board of Directors as to any such adjustment shall
be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Shares or (ii) subject to 17.03(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
SECTION 17.04. CONSOLIDATION OR MERGER OF THE COMPANY.
In case of either (a) any consolidation or merger to which the
Company is a party, other than a merger or consolidation in which the Company is
the surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Shares or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Shares
into which such Debt Securities would have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Seventeen (and assuming such holder of Common Shares failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance is not the same for each nonelecting
share, then the kind and
79
amount of securities, cash or other property (including cash) receivable upon
such consolidation, merger, sale or conveyance for each nonelecting share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the nonelecting shares or securities)). The Company shall not enter into any of
the transactions referred to in clause (a) or (b) of the preceding sentence
unless effective provision shall be made so as to give effect to the provisions
set forth in this Section 17.04. The provisions of this Section 17.04 shall
apply similarly to successive consolidations, mergers, sales or conveyances.
SECTION 17.05. NOTICE OF ADJUSTMENT.
Whenever an adjustment in the Conversion Price with respect to
a series of Debt Securities is required:
(1) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.05. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
SECTION 17.06. NOTICE IN CERTAIN EVENTS.
IN CASE:
(1) of a consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article Seventeen; then, in each case, the
Company shall cause to be filed with the Trustee and the Conversion
Agent for the applicable Debt Securities, and shall cause to be given,
to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.05, at least fifteen (15) days prior to the
applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of any distribution or
grant of rights or warrants triggering an adjustment to the Conversion
Price pursuant to this Article Seventeen, or, if a record is not to be
taken, the date as of which the holders of record or Common Shares
entitled to such distribution, rights or warrants are to be determined,
or (y) the date on which any reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Seventeen
is expected to become effective, and the date as of which it is
expected that holders of Common Shares of record shall be entitled to
exchange their Common Shares for securities or other property
deliverable upon
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such reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clause (1), (2),
or (3) of this Section.
SECTION 17.07. COMPANY TO RESERVE SHARES; REGISTRATION;
LISTING.
(a) The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued shares
of Common Shares, for the purpose of effecting the conversion of the
Debt Securities, such number of its duly authorized shares of Common
Shares as shall from time to time be sufficient to effect the
conversion of all applicable outstanding Debt Securities into such
Common Shares at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt
Securities would be held by a single holder); PROVIDED, HOWEVER, that
nothing contained herein shall preclude the Company from satisfying its
obligations in respect of the conversion of the Debt Securities by
delivery of purchased shares of Common Shares which are held in the
treasury of the Company. The Company shall from time to time, in
accordance with the laws of the State of Ohio, use its best efforts to
cause the authorized amount of the Common Shares to be increased if the
aggregate of the authorized amount of the Common Shares remaining
unissued and the issued shares of such Common Shares in its treasury
(other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all
Debt Securities.
(b) If any shares of Common Shares which would be issuable
upon conversion of Debt Securities hereunder require registration with
or approval of any governmental authority before such shares or
securities may be issued upon such conversion, the Company will in good
faith and as expeditiously as possible endeavor to cause such shares or
securities to be duly registered or approved, as the case may be. The
Company will endeavor to list the shares of Common Shares required to
be delivered upon conversion of the Debt Securities prior to such
delivery upon the principal national securities exchange upon which the
outstanding Common Shares are listed at the time of such delivery.
SECTION 17.08. TAXES ON CONVERSION.
The Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Common Shares on conversion of Debt Securities pursuant
hereto. The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue or delivery of
shares of Common Shares or the portion, if any, of the Debt Securities which are
not so converted in a name other than that in which the Debt Securities so
converted were registered, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount of
such tax or has established to the satisfaction of the Company that such tax has
been paid.
SECTION 17.09. CONVERSION AFTER RECORD DATE.
If any Debt Securities are surrendered for conversion
subsequent to the record date preceding an Interest Payment Date but on or prior
to such Interest Payment Date (except Debt Securities called for redemption on a
Redemption Date between such record date and Interest Payment Date), the Holder
of such Debt Securities at the close of business on such record date shall be
entitled to receive the interest payable on such Debt Securities on such
Interest Payment Date notwithstanding the conversion thereof. Debt Securities
surrendered for conversion during the period from the close of business on any
record date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of Debt Securities
81
which have been called for redemption on a Redemption Date within such period)
be accompanied by payment to the Company and in the Currency acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the Debt Securities being surrendered for conversion. Except as provided in
this Section 17.09, no adjustments in respect of payments of interest on Debt
Securities surrendered for conversion or any dividends or distributions of
interest on the Common Shares issued upon conversion shall be made upon the
conversion of any Debt Securities.
SECTION 17.10. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors
must make pursuant to this Article is conclusive.
SECTION 17.11. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under
this Article should be made, how it should be made or what it should be. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Debt Securities. The Trustee shall not be
responsible for the Company's failure to comply with this Article. Each
Conversion Agent other than the Company shall have the same protection under
this Section as the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
THE SCOTTS COMPANY
By:
------------------------
Name:
Title:
, as Trustee
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By:
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Name:
Title: