EXHIBIT 4.6
FORM OF INDENTURE
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NUVEEN INVESTMENTS, INC.
as Issuer
and
--------------
as Trustee
--------------
Indenture
Dated as of --------------, ----
--------------
Debt Securities
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CROSS-REFERENCE TABLE
SECTION OF
TRUST SECTION(S)
INDENTURE OF
ACT OF 1939 INDENTURE
Section 310 (a)(1).................................. 7.10
(a)(2).................................. 7.10
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(a)(5).................................. 7.10
(b)..................................... 7.08, 7.10
Section 311 (a)..................................... 7.11
(b)..................................... 7.11
(c)..................................... Not Applicable
Section 312 (a)..................................... 2.07
(b)..................................... 12.03
(c)..................................... 12.03
Section 313 (a)..................................... 7.06
(b)..................................... 7.06
(c)..................................... 7.06
(d)..................................... 7.06
Section 314 (a)..................................... 4.03, 4.04
(b)..................................... Not Applicable
(c)(1).................................. 12.04
(c)(2).................................. 12.04
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 12.05
Section 315 (a)..................................... 7.01(b)
(b)..................................... 7.05
(c)..................................... 7.01(a)
(d)..................................... 7.01(c)
(d)(1).................................. 7.01(c)(1)
(d)(2).................................. 7.01(c)(2)
(d)(3).................................. 7.01(c)(3)
(e)..................................... 6.11
Section 316 (a)(1)(A)............................... 6.05
(a)(1)(B)............................... 6.04
(a)(2).................................. Not Applicable
(a)(last sentence)...................... 2.11
(b)..................................... 6.07
SECTION OF
TRUST SECTION(S)
INDENTURE OF
ACT OF 1939 INDENTURE
Section 317 (a)(1).................................. 6.08
(a)(2).................................. 6.09
(b)..................................... 2.06
Section 318 (a)..................................... 12.01
-------------------
Note: This cross-reference table shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.......................1
Section 1.01 Definitions................................................. .1
Section 1.02 Other Definitions............................................ 6
Section 1.03 Incorporation by Reference of Trust Indenture Act............ 7
Section 1.04 Rules of Construction........................................ 7
ARTICLE II THE SECURITIES...................................................8
Section 2.01 Amount Unlimited; Issuable in Series..........................8
Section 2.02 Denominations................................................11
Section 2.03 Forms Generally..............................................11
Section 2.04 Execution, Authentication, Delivery and Dating...............11
Section 2.05 Registrar and Paying Agent...................................13
Section 2.06 Paying Agent to Hold Money in Trust..........................14
Section 2.07 Holder Lists.................................................14
Section 2.08 Transfer and Exchange........................................14
Section 2.09 Replacement Securities.......................................15
Section 2.10 Outstanding Securities.......................................15
Section 2.11 Original Issue Discount, Foreign-Currency
Denominated and Treasury Securities.....................15
Section 2.12 Temporary Securities.........................................16
Section 2.13 Cancellation.................................................16
Section 2.14 Payments; Defaulted Interest.................................16
Section 2.15 Persons Deemed Owners........................................17
Section 2.16 Computation of Interest......................................17
Section 2.17 Global Securities; Book-Entry Provisions.....................17
ARTICLE III REDEMPTION......................................................19
Section 3.01 Applicability of Article.....................................19
Section 3.02 Notice to the Trustee........................................19
Section 3.03 Selection of Securities to Be Redeemed.......................20
Section 3.04 Notice of Redemption.........................................20
Section 3.05 Effect of Notice of Redemption...............................21
Section 3.06 Deposit of Redemption Price..................................21
Section 3.07 Securities Redeemed or Purchased in Part.....................21
Section 3.08 Purchase of Securities.......................................22
Section 3.09 Mandatory and Optional Sinking Funds................... .....22
Section 3.10 Satisfaction of Sinking Fund Payments with Securities........22
Section 3.11 Redemption of Securities for Sinking Fund....................22
ARTICLE IV COVENANTS.......................................................23
Section 4.01 Payment of Securities........................................23
Section 4.02 Maintenance of Office or Agency..............................23
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Section 4.03 SEC Reports; Financial Statements............................24
Section 4.04 Compliance Certificate.......................................24
Section 4.05 Existence....................................................25
Section 4.06 Waiver of Stay, Extension or Usury Laws......................25
Section 4.07 Additional Amounts...........................................25
ARTICLE V SUCCESSORS......................................................26
Section 5.01 Limitations on Mergers, Consolidations and Other
Transactions.................................................26
Section 5.02 Successor Person Substituted.................................27
ARTICLE VI DEFAULTS AND REMEDIES...........................................27
Section 6.01 Events of Default............................................27
Section 6.02 Acceleration.................................................29
Section 6.03 Other Remedies...............................................29
Section 6.04 Waiver of Defaults...........................................30
Section 6.05 Control by Majority..........................................30
Section 6.06 Limitations on Suits.........................................30
Section 6.07 Rights of Holders to Receive Payment.........................31
Section 6.08 Collection Suit by Trustee...................................31
Section 6.09 Trustee May File Proofs of Claim.............................31
Section 6.10 Priorities...................................................32
Section 6.11 Undertaking for Costs........................................32
ARTICLE VII TRUSTEE.........................................................33
Section 7.01 Duties of Trustee............................................33
Section 7.02 Rights of Trustee............................................34
Section 7.03 May Hold Securities..........................................34
Section 7.04 Trustee's Disclaimer.........................................34
Section 7.05 Notice of Defaults...........................................35
Section 7.06 Reports by Trustee to Holders................................35
Section 7.07 Compensation and Indemnity...................................35
Section 7.08 Replacement of Trustee.......................................36
Section 7.09 Successor Trustee by Merger, etc.............................37
Section 7.10 Eligibility; Disqualification................................38
Section 7.11 Preferential Collection of Claims Against Company............38
ARTICLE VIII DISCHARGE OF INDENTURE..........................................38
Section 8.01 Termination of Company's Obligations.........................38
Section 8.02 Application of Trust Money...................................42
Section 8.03 Repayment to Company.........................................42
Section 8.04 Reinstatement................................................43
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS..........................43
Section 9.01 Without Consent of Holders...................................43
Section 9.02 With Consent of Holders......................................44
Section 9.03 Compliance with Trust Indenture Act..........................46
Section 9.04 Revocation and Effect of Consents............................46
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Section 9.05 Notation on or Exchange of Securities........................47
Section 9.06 Trustee to Sign Amendments, etc..............................47
ARTICLE X SUBORDINATED SECURITIES.........................................47
Section 10.01 Subordinated Securities......................................47
Section 10.02 No Payment on Subordinated Securities in Certain
Circumstances................................................48
Section 10.03 Subordinated Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution, Liquidation or
Reorganization...............................................49
Section 10.04 Subrogation to Rights of Holders of Senior Indebtedness......50
Section 10.05 Obligations of the Company Unconditional.....................51
Section 10.06 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice............................................51
Section 10.07 Application by Trustee of Amounts Deposited with It..........52
Section 10.08 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness.............52
Section 10.09 Trustee to Effectuate Subordination of Subordinated
Securities...................................................52
Section 10.10 Right of Trustee to Hold Senior Indebtedness.................53
Section 10.11 Article X Not to Prevent Events of Default...................53
Section 10.12 No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness..........................................53
Section 10.13 Article Applicable to Paying Agent...........................53
ARTICLE XI GUARANTEES......................................................54
ARTICLE XII MISCELLANEOUS...................................................54
Section 12.01 Trust Indenture Act Controls.................................54
Section 12.02 Notices......................................................54
Section 12.03 Communication by Holders with Other Holders..................55
Section 12.04 Certificate and Opinion as to Conditions Precedent...........55
Section 12.05 Statements Required in Certificate or Opinion................56
Section 12.06 Rules by Trustee and Agents..................................56
Section 12.07 Legal Holidays...............................................56
Section 12.08 No Recourse Against Others...................................56
Section 12.09 Governing Law................................................56
Section 12.10 No Adverse Interpretation of Other Agreements................57
Section 12.11 Successors...................................................57
Section 12.12 Severability.................................................57
Section 12.13 Counterpart Originals........................................57
Section 12.14 Table of Contents, Headings, etc.............................57
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INDENTURE dated as of --------------- between Nuveen Investments, Inc.,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), and --------------------, as trustee
(herein called the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"Additional Amounts" means any additional amounts required by the
express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the
Company with respect to certain taxes, assessments or other governmental
charges imposed on certain Holders and that are owing to those Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, that specified Person. For purposes of this definition,
"control" of a Person shall mean the power to direct the management and
policies of that Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11 of the United States Code or any similar
federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized, with respect to any particular matter, to
act by or on behalf of the Board of Directors of the Company.
"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
that certification, and delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease Obligation" of any Person means any obligation of
that Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes
in accordance with GAAP; and the amount of that obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean that successor corporation; provided, however, that for
purposes of any provision contained herein which is required by the TIA,
"Company" shall also mean each other obligor (if any) on the Securities of a
series.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers of the
Company, and delivered to the Trustee.
"Corporate Trust Office" of the Trustee means the office of the Trustee
located at --------------------, and as may be located at such other address
as the Trustee may give notice to the Company.
"Default" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified
pursuant to Section 2.01 hereof as the initial Depositary with respect to the
Securities of that series, until a successor shall have been appointed and
become such pursuant to the applicable provision of this Indenture, and
thereafter "Depositary" shall mean or include that successor.
"Designated Senior Indebtedness," unless otherwise provided with respect
to the Securities of a series as contemplated by Section 2.01, means any
Senior Indebtedness of the Company that (i) in the instrument evidencing the
same or the assumption or guarantee thereof (or related documents to which
the Company is a party) is expressly designated as "Designated Senior
Indebtedness" for purposes of this Indenture and (ii) satisfies such other
conditions as may be provided with respect to the Securities of that series;
provided that those instruments or documents may place limitations and
conditions on the right of that Senior Indebtedness to exercise the rights of
Designated Senior Indebtedness.
"Disqualified Capital Stock" means, when used with respect to the
Securities of any series, (i) except as set forth in (ii), with respect to
any Person, Capital Stock of that Person that, by its terms or by the terms
of any security into which it is convertible, exercisable or exchangeable,
is, or on the happening of an event or the passage of time would be, required
to be redeemed or repurchased (including at the option of the holder thereof)
by that Person or any Subsidiary of that Person, in whole or in part, on or
prior to the last Stated Maturity of the
2
Securities of that series, and (ii) with respect to any Subsidiary of that
Person (including with respect to any Subsidiary of the Company), any Capital
Stock other than any common stock with no preference, privileges, or redemption
or repayment provisions.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"GAAP" means generally accepted accounting principles in the United
States 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 may be approved by a
significant segment of the accounting profession of the United States, as in
effect from time to time.
"Global Security" of any series means a Security of that Series that is
issued in global form in the name of the Depositary with respect thereto or
its nominee.
"Government Obligations" means, with respect to a series of Securities,
direct obligations of the government that issues the currency in which the
Securities of the series are payable for the payment of which the full faith
and credit of that government is pledged, or obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
that government, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by that government.
"Guarantee" means the guarantee by any guarantor of the obligations
under this Indenture.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" of any Person means, without duplication, (i) all
indebtedness of that Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of that Person or only to a
portion thereof), (ii) all obligations of that Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of that
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters
of credit, bid or performance bonds and other similar obligations issued by
or for the account of that Person in the ordinary course of business, to the
extent not drawn or, to the extent drawn, if that drawing is reimbursed not
later than 30 Business Days following demand for reimbursement, (iv) all
obligations of that Person to pay the deferred and unpaid purchase price of
property or services, except trade payables, advances on contracts and
accrued expenses arising in the ordinary course of business, (v) all
Capitalized Lease Obligations of that Person, (vi) all Indebtedness of others
secured by a Lien on any asset of that Person, whether or not that
Indebtedness is assumed by that Person (provided that if the obligations so
secured have not been assumed in full by that Person or are not otherwise
that Person's legal liability in full, then those obligations shall be deemed
to be in an amount equal to the greater of (a) the lesser of (1) the full
amount of those obligations and (2) the fair market
3
value of those assets, as determined in good faith by the board of directors or
other managing body of that Person and (b) the amount of obligations as have
been assumed by that Person or which are otherwise that Person's legal
liability), and (vii) all guarantees by that Person of or with respect to
Indebtedness of others (other than endorsements in the ordinary course of
business), in each case to the extent of the Indebtedness guaranteed.
"Indenture" means this Indenture as amended or supplemented from time to
time pursuant to the provisions hereof, and includes the terms of a
particular series of Securities established as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, interest payable after
Maturity.
"Interest Payment Date," when used with respect to any Security, shall
have the meaning assigned to that term in the Security as contemplated by
Section 2.01.
"Issue Date" means, with respect to Securities of a series, the date on
which the Securities of that series are originally issued under this
Indenture.
"Junior security" of a Person means, when used with respect to the
Securities of any series, any Qualified Capital Stock of that Person or any
Indebtedness of that Person that is subordinated in right of payment to
Senior Indebtedness of the Company to substantially the same extent as, or to
a greater extent than, the Securities of that series and has no scheduled
installment of principal due, by redemption, sinking fund payment or
otherwise, on or prior to the last Stated Maturity of the Securities of that
series.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in any of The City of New York, New York, ---------------,
Chicago, Illinois, or a Place of Payment are authorized or obligated by law,
regulation or executive order to remain closed.
"Maturity" means, with respect to any Security, the date on which the
principal of that Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity
thereof, or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. That counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable on a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
4
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or
other agency or political subdivision thereof or other entity of any kind.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where, subject to the provisions of Section 4.02, the
principal of, premium (if any) on and interest on the Securities of that
series are payable as specified in accordance with Section 2.01.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Qualified Capital Stock" means any Capital Stock of the Company that is
not Disqualified Capital Stock.
"Redemption Date" means, with respect to any Security to be redeemed,
the date fixed for that redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be redeemed,
the price at which it is to be redeemed pursuant to this Indenture.
"Rule 144A Securities" means Securities of a series designated pursuant
to Section 2.01 as entitled to the benefits of Section 4.03(b).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Custodian" means, with respect to Securities of a series
issued in global form, the Trustee for Securities of that series, as
custodian with respect to the Securities of that series, or any successor
entity thereto.
"Senior Indebtedness" of the Company, unless otherwise provided with
respect to the Securities of a series as contemplated by Section 2.01, means
(i) the principal of and premium, if any, and interest on (including interest
accruing or becoming owing prior to or subsequent to the commencement of any
proceeding against or with respect to the Company under any bankruptcy law)
and other amounts due on or in connection with any Indebtedness of the
Company, whether currently outstanding or hereafter incurred, issued or
assumed, unless, by the terms of the instrument creating or evidencing that
Indebtedness, it is provided that such Indebtedness is not superior in right
of payment to the Securities or to other Indebtedness which is pari passu
with or subordinated to the Securities, and (ii) any modifications,
refunding, deferrals, renewals or extensions of any such Indebtedness or
securities, notes or other evidences of Indebtedness issued in exchange for
that Indebtedness; provided that in no event shall "Senior Indebtedness" of
the Company include Indebtedness of the Company for borrowed money owed or
owing to any Subsidiary of the Company or any executive officer or director
of the Company.
5
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in
that Security as the fixed date on which the principal of that Security or
that installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has that voting
power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the date hereof.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the Person named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture,
and thereafter "Trustee" means each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series means the Trustee with respect to
Securities of that series.
"United States" means the United States of America (including the States
and the District of Columbia) and its territories and possessions (including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands).
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien or foreign fiduciary of an estate or trust,
or a foreign partnership.
"U.S. Government Obligations" means Government Obligations with respect
to Securities payable in Dollars.
Section 1.02 OTHER DEFINITIONS.
DEFINED TERM DEFINED IN SECTION
"Bankruptcy Custodian".............................. 6.01
"Conversion Event".................................. 6.01
"covenant defeasance"............................... 8.01
"Event of Default".................................. 6.01
"Exchange Rate"..................................... 2.11
"Judgment Currency"................................. 6.10
"legal defeasance".................................. 8.01
"mandatory sinking fund payment".................... 3.09
"optional sinking fund payment"..................... 3.09
"Paying Agent"...................................... 2.05
6
DEFINED TERM DEFINED IN SECTION
"Payment Blocking Notice"........................... 10.02
"Payment Default"................................... 10.02
"Registrar"......................................... 2.05
"Required Currency"................................. 6.10
"Subordinated Security"............................. 10.01
"Successor"......................................... 5.01
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by
a TIA reference to another statute or defined by an SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
7
(6) all references in this instrument to Articles and Sections are
references to the corresponding Articles and Sections in and of this
instrument.
ARTICLE II
THE SECURITIES
Section 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth, or
determined in a manner provided, in an Officers' Certificate or in a Company
Order, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from the Securities of all other series);
(2) if there is to be a limit, the limit on the aggregate principal
amount of the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered on registration of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 2.08, 2.09, 2.12,
2.17, 3.07 or 9.05 and except for any Securities that, pursuant to Section
2.04 or 2.17, are deemed never to have been authenticated and delivered
hereunder); PROVIDED, HOWEVER, that unless otherwise provided in the terms
of the series, the authorized aggregate principal amount of that series may
be increased before or after the issuance of any Securities of the series
by a Board Resolution (or action pursuant to a Board Resolution) to that
effect;
(3) whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series are to be
issuable in permanent global form, as Global Securities or otherwise, and,
if so, whether beneficial owners of interests in any such Global Security
may exchange those interests for Securities of that series and of like
tenor of any authorized form and denomination and the circumstances under
which those exchanges may occur, if other than in the manner provided in
Section 2.17, and the initial Depositary and Security Custodian, if any,
for any Global Security or Securities of that series;
(4) (i) if other than provided herein, the Person to whom any interest
on Securities of the series shall be payable, and (ii) the manner in which
any interest payable on a temporary Global Security on any Interest Payment
Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on which the principal of (and premium, if any,
on) the Securities of the series is payable or the method of determination
thereof;
8
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether and
under what circumstances Additional Amounts with respect to those
Securities shall be payable, the date or dates from which that interest
shall accrue, the Interest Payment Dates on which that interest shall be
payable and the record date for the interest payable on any Securities on
any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.02, the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions on which Securities of the series may be redeemed, in whole or
in part, at the option of the Company, if the Company is to have that
option, and the manner in which the Company may exercise any such option,
if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices (whether denominated in cash, securities
or otherwise) at which and the terms and conditions on which Securities of
the series shall be redeemed, purchased or repaid in whole or in part
pursuant to that obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denomination in which any Securities of that series shall be
issuable;
(11) if other than Dollars, the currency or currencies (including
composite currencies) or the form, including equity securities, other debt
securities (including Securities), warrants or any other securities or
property of the Company or any other Person, in which payment of the
principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of the series shall be payable;
(12) if the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies (including composite currencies) other than that in which the
Securities are stated to be payable, the currency or currencies (including
composite currencies) in which payment of the principal, premium (if any),
interest and any Additional Amounts with respect to Securities of that
series as to which that election is made shall be payable, and the periods
within which and the terms and conditions on which that election is to be
made;
(13) if the amount of payments of principal, premium (if any),
interest and any Additional Amounts with respect to the Securities of the
series may be determined with reference to any commodities, currencies or
indices, values, rates or prices or any other index or formula, the manner
in which those amounts shall be determined;
9
(14) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable on
declaration of acceleration of the Maturity thereof pursuant to Section
6.02;
(15) any additional means of satisfaction and discharge of this
Indenture and any additional conditions or limitations to discharge with
respect to Securities of the series pursuant to Article VIII or any
modifications of or deletions from those conditions or limitations;
(16) any deletions or modifications of or additions to the Events of
Default set forth in Section 6.01 or covenants of the Company set forth in
Article IV pertaining to the Securities of the series;
(17) any restrictions or other provisions with respect to the transfer
or exchange of Securities of the series, which may amend, supplement,
modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible into or
exchangeable for Capital Stock, other debt securities (including
Securities), warrants, other equity securities or any other securities or
property of the Company or any other Person, at the option of the Company
or the Holder or on the occurrence of any condition or event, the terms and
conditions for that conversion or exchange;
(19) if the Securities of the series shall have the benefits of any
Guarantee and, if so, the identity of the guarantor or guarantors and the
terms and provisions applicable to any such Guarantee;
(20) if the Securities of the series are to be entitled to the benefit
of Section 4.03(b) (and accordingly constitute Rule 144A Securities);
(21) any modifications to, or qualifications contemplated by, the
definition of "Designated Senior Indebtedness," any modifications to the
definition of "Senior Indebtedness" of the Company or any modifications to
Article X or the other provisions regarding subordination with respect to
the Securities of that series; and
(22) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 2.03) set
forth, or determined in the manner provided, in the Officers' Certificate or
Company Order referred to above or in any such indenture supplemental hereto.
Subordinated Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article X.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of that
action together with that Board Resolution shall be set forth in an Officers'
Certificate or certified by the Secretary or an Assistant Secretary
10
of the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or Company Order setting forth the terms of the series.
Section 2.02 DENOMINATIONS.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 2.01. In the absence of any
such provisions with respect to the Securities of any series, the Securities
of that series denominated in Dollars shall be issuable in denominations of
$1,000 and any integral multiples thereof.
Section 2.03 FORMS GENERALLY.
The Securities of each series shall be in fully registered form and in
substantially the form or forms (including temporary or permanent global
form) established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto. The Securities may have notations, legends
or endorsements required by law, securities exchange rule, the Company's
certificate of incorporation, bylaws or other similar governing documents,
agreements to which the Company is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the
Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.04 for the
authentication and delivery of those Securities.
The definitive Securities of each series shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing those Securities, as evidenced by
their execution thereof.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------, as Trustee
By:
-------------------------------------
Authorized Officer".
Section 2.04 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Two Officers of the Company shall sign the Securities of each series on
behalf of the Company by manual or facsimile signature. The Company's seal,
if any, shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer of the Company whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security
shall be valid nevertheless.
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A Security shall not be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose until authenticated by the manual
signature of an authorized signatory of the Trustee, which signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture. Notwithstanding the foregoing, if any Security has been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company delivers that Security to the Trustee for
cancellation as provided in Section 2.13 together with a written statement
(which need not comply with Section 12.05 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture that Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, and the Trustee shall
authenticate and deliver those Securities for original issue on a Company
Order for the authentication and delivery of those Securities or pursuant to
such procedures reasonably acceptable to the Trustee as may be specified from
time to time by Company Order. That order shall specify the amount of the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated, the name or names of the initial Holder or
Holders and any other terms of the Securities of that series not otherwise
determined. If provided for in those procedures, that Company Order may
authorize (1) authentication and delivery of Securities of that series for
original issue from time to time, with certain terms (including, without
limitation, the Maturity date or dates, original issue date or dates and
interest rate or rates) that differ from Security to Security and (2) may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 2.01, in authenticating those Securities, and accepting the
additional responsibilities under this Indenture in relation to those
Securities, the Trustee shall be entitled to receive (in addition to the
Company Order referred to above and the other documents required by Section
12.04), and (subject to Section 7.01) shall be fully protected in relying on,
(a) an Officers' Certificate setting forth the Board Resolution and,
if applicable, an appropriate record of any action taken pursuant thereto,
as contemplated by the last paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) if the form of those Securities has been established by or
pursuant to Board Resolution, as is permitted by Section 2.01, that
such form has been established in conformity with the provisions of
this Indenture;
(ii) if the terms of those Securities have been established by or
pursuant to Board Resolution, as is permitted by Section 2.01, that
such terms have been established in conformity with the provisions of
this Indenture; and
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(iii) those Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in that Opinion of Counsel, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar
laws in effect from time to time affecting the rights of creditors
generally, and the application of general principles of equity
(regardless of whether that enforceability is considered in a
proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Officers' Certificate and Opinion of
Counsel at the time of issuance of each such Security, but that Officers'
Certificate and Opinion of Counsel shall be delivered at or before the time
of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate those Securities if
the issuance of those Securities pursuant to this Indenture would affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of that
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by that agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
Each Security shall be dated the date of its authentication.
Section 2.05 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency for each series of
Securities where Securities of that series may be presented for registration
of transfer or exchange ("Registrar") and an office or agency where
Securities of that series may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Securities of that series and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Registrar" includes any
co-registrar, and the term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to that Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or
Registrar without notice to any Holder. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act
as such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
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Section 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.
With respect to each series of Securities, the Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of Holders of Securities of that
series or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on or any Additional Amounts with
respect to Securities of that series and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. Upon payment over to the Trustee and
upon accounting for any funds disbursed, the Paying Agent (if other than the
Company or a Subsidiary of the Company) shall have no further liability for
the money. If the Company or a Subsidiary of the Company acts as Paying
Agent with respect to a series of Securities, it shall segregate and hold in
a separate trust fund for the benefit of the Holders of Securities of that
series all money held by it as Paying Agent. Each Paying Agent shall
otherwise comply with TIA Section 317(b).
Section 2.07 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders of each series of Securities and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar with respect to a series
of Securities, the Company shall furnish to the Trustee at least five
Business Days before each Interest Payment Date with respect to that series
of Securities, and at such other times as the Trustee may request in writing,
a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders of the Securities of that series, and
the Company shall otherwise comply with TIA Section 312(a).
Section 2.08 TRANSFER AND EXCHANGE.
Except as set forth in Section 2.17 or as may be provided pursuant to
Section 2.01, when Securities of any series are presented to the Registrar
with the request to register the transfer of those Securities or to exchange
those Securities for an equal principal amount of Securities of the same
series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its
requirements and the requirements of this Indenture for those transactions
are met; provided, however, that the Securities presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by
a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly
authorized in writing, on which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
written request and submission of the Securities (other than Global
Securities). No service charge shall be made to a Holder for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar
14
governmental charge payable on exchanges pursuant to Section 2.12, 3.07 or
9.05). The Trustee shall authenticate Securities in accordance with the
provisions of Section 2.04. Notwithstanding any other provisions of this
Indenture to the contrary, the Company shall not be required to register the
transfer or exchange of (a) any Security selected for redemption in whole or in
part pursuant to Article III, except the unredeemed portion of any Security
being redeemed in part or (b) any Security during the period beginning 15
Business Days before the mailing of notice of any offer to repurchase Securities
of the series required pursuant to the terms thereof or of redemption of
Securities of a series to be redeemed and ending at the close of business on the
date of mailing.
Section 2.09 REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee, or if the
Holder of a Security claims that the Security has been destroyed, lost or
stolen and the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of that Security, the Company shall issue
and the Trustee shall authenticate a replacement Security of the same series
if the Trustee's requirements are met. If any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay that
Security. If required by the Trustee or the Company, the Holder must furnish
an indemnity bond that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss that any of them may suffer if a Security is replaced.
The Company and the Trustee may charge the Holder for their expenses in
replacing a Security.
Every replacement Security is an additional obligation of the Company.
Section 2.10 OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.10 as
not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue. A
Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security.
Section 2.11 ORIGINAL ISSUE DISCOUNT, FOREIGN-CURRENCY DENOMINATED AND
TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, (a) the principal amount of an Original Issue Discount Security
shall be the principal amount thereof that would be due and payable as of the
date of that determination upon acceleration of the Maturity thereof
15
pursuant to Section 6.02, (b) the principal amount of a Security denominated in
a foreign currency shall be the Dollar equivalent, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for that currency, as that rate is certified for customs purposes by the Federal
Reserve Bank of New York (the "Exchange Rate") on the date of original issuance
of that Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent, as determined by the Company by
reference to the Exchange Rate on the date of original issuance of that
Security, of the amount determined as provided in (a) above), of that Security
and (c) Securities owned by the Company or any other obligor on the Securities
or any Affiliate of the Company or of that other obligor shall be disregarded,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, amendment, supplement, waiver or
consent, only Securities that the Trustee actually knows are so owned shall be
so disregarded.
Section 2.12 TEMPORARY SECURITIES.
Until definitive Securities of any series are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities, but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities in exchange
for temporary Securities. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 2.13 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange, payment or redemption or for credit against any sinking fund
payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption, replacement or
cancellation or for credit against any sinking fund. Unless the Company
shall direct in writing that canceled Securities be returned to it, after
written notice to the Company all canceled Securities held by the Trustee
shall be disposed of in accordance with the usual disposal procedures of the
Trustee, and the Trustee shall maintain a record of their disposal. The
Company may not issue new Securities to replace Securities that have been
paid or that have been delivered to the Trustee for cancellation.
Section 2.14 PAYMENTS; DEFAULTED INTEREST.
Unless otherwise provided as contemplated by Section 2.01 with respect
to the Securities of any series, interest (except defaulted interest) on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Persons who are registered Holders
of that Security at the close of business on the record date next preceding
that Interest Payment Date, even if those Securities are canceled after that
record date and on or before that Interest Payment Date. Unless otherwise
provided with respect to the Securities of any series, the Company will pay
the principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities in Dollars. Those amounts shall be payable at
the offices of the Trustee, provided that at the option of the Company, the
Company
16
may pay those amounts (1) by wire transfer with respect to Global Securities or
(2) by check payable in that money mailed to a Holder's registered address with
respect to any Securities.
If the Company defaults in a payment of interest on the Securities of
any series, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest on the defaulted interest, in each case at the
rate provided in the Securities of that series and in Section 4.01. The
Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record
date selected by the Company, the Company (or the Trustee, in the name of and
at the expense of the Company upon 20 days' prior written notice from the
Company setting forth that record date and the interest amount to be paid)
shall mail to Holders of any such series of Securities a notice that states
the special record date, the related payment date and the amount of that
interest to be paid.
Section 2.15 PERSONS DEEMED OWNERS.
The Company, the Trustee, any Agent and any authenticating agent may
treat the Person in whose name any Security is registered as the owner of
that Security for the purpose of receiving payments of principal of, premium
(if any) or interest on, or any Additional Amounts with respect to that
Security and for all other purposes. None of the Company, the Trustee, any
Agent or any authenticating agent shall be affected by any notice to the
contrary.
Section 2.16 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
Section 2.17 GLOBAL SECURITIES; BOOK-ENTRY PROVISIONS.
If Securities of a series are issuable in global form as a Global
Security, as contemplated by Section 2.01, then, notwithstanding clause (10)
of Section 2.01 and the provisions of Section 2.02, any such Global Security
shall represent those of the outstanding Securities of that series as shall
be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that
the aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges or
redemptions. Any endorsement of a Global Security to reflect the amount, or
any increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee (i) in such manner and upon instructions
given by such Person or Persons as shall be specified in that Security or in
a Company Order to be delivered to the Trustee pursuant to Section 2.04 or
(ii) otherwise in accordance with written instructions or such other written
form of instructions as is customary for the Depositary for that Security,
from that Depositary or its nominee on behalf of any Person having a
beneficial interest in that Global Security. Subject to the provisions of
Section 2.04 and, if applicable, Section 2.12, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in that Security or in
the applicable Company Order. With respect to the Securities of any series
that are represented by a Global Security, the Company authorizes the
execution and delivery by the Trustee of a letter of
17
representations or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to that Global Security.
Any Global Security may be deposited with the Depositary or its nominee, or may
remain in the custody of the Trustee or the Security Custodian therefor pursuant
to a FAST Balance Certificate Agreement or similar agreement between the Trustee
and the Depositary. If a Company Order has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 12.05 and need not be accompanied by an Opinion of
Counsel.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held
on their behalf by the Depositary, or the Trustee or the Security Custodian
as its custodian, or under that Global Security, and the Depositary may be
treated by the Company, the Trustee or the Security Custodian and any agent
of the Company, the Trustee or the Security Custodian as the absolute owner
of that Global Security for all purposes whatsoever. Notwithstanding the
foregoing, (i) the registered holder of a Global Security of any series may
grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action
that a Holder of Securities of that series is entitled to take under this
Indenture or the Securities of that series and (ii) nothing herein shall
prevent the Company, the Trustee or the Security Custodian or any agent of
the Company, the Trustee, or the Security Custodian from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or shall impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of
a beneficial owner of any Security.
Notwithstanding Section 2.08, and except as otherwise provided pursuant
to Section 2.01, transfers of a Global Security shall be limited to transfers
of that Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities of any series shall be transferred
to all beneficial owners of a Global Security of that series in exchange for
their beneficial interests in that Global Security if, and only if, either
(1) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for that Global Security and a successor Depositary is
not appointed by the Company within 90 days of that notice, (2) an Event of
Default has occurred with respect to that series and is continuing and the
Registrar has received a request from the Depositary to issue Securities of
that series in lieu of all or a portion of that Global Security (in which
case the Company shall deliver Securities of that series within 30 days of
that request) or (3) the Company determines not to have the Securities of
that series represented by a Global Security.
In connection with any transfer of a portion of the beneficial interests
in a Global Security to beneficial owners pursuant to this Section 2.17, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee on receipt of a
Company Order for the authentication and delivery of Securities shall
authenticate and deliver, one or more Securities of the same series of like
tenor and amount.
18
In connection with the transfer of all the beneficial interests in a
Global Security of any series to beneficial owners pursuant to this Section
2.17, the Global Security shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Security, an
equal aggregate principal amount of Securities of that series of authorized
denominations. Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating
to those Securities.
Neither the Company nor the Trustee shall be liable for any delay by the
related Global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall
be protected in relying on, instructions from that Global Security Holder or
the Depositary for all purposes (including with respect to the registration
and delivery, and the respective principal amounts, of the Securities to be
issued).
The provisions of the last sentence of the third paragraph of Section
2.04 shall apply to any Global Security if that Global Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Global Security together with written instructions (which need not comply
with Section 12.05 and need not be accompanied by an Opinion of Counsel) with
regard to the cancellation or reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless
otherwise specified as contemplated by Section 2.01 with respect to
Securities of any series, payment of principal of and premium (if any) and
interest on and any Additional Amounts with respect to any Global Security
shall be made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
Section 3.01 APPLICABILITY OF ARTICLE.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
Section 3.02 NOTICE TO THE TRUSTEE.
If the Company elects to redeem Securities of any series pursuant to
this Indenture, it shall notify the Trustee of the Redemption Date and
principal amount of Securities of that series to be redeemed. The Company
shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering
to the Trustee an Officers' Certificate stating that the redemption will
comply with the provisions of this Indenture and of the Securities of that
series. Any such notice may be canceled at any time prior to the mailing of
that notice of redemption to any Holder of the Securities of that series and
shall thereupon be void and of no effect.
19
Section 3.03 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of that series of a specified tenor are to be redeemed),
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the outstanding Securities of
that series (and tenor) not previously called for redemption, either pro rata,
by lot or by such other method as the Trustee shall deem fair and appropriate.
That redemption may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of that series
of a denomination larger than the minimum authorized denomination for Securities
of that series or of the principal amount of Global Securities of that series.
The Trustee shall promptly notify the Company and the Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to
be redeemed.
For purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Securities of any series shall relate, in
the case of any of the Securities redeemed or to be redeemed only in part, to
the portion of the principal amount thereof which has been or is to be redeemed.
Section 3.04 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities of a series to be redeemed, at
the address of that Holder appearing in the register of Securities for that
series maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of those Securities is to receive payment of the Redemption Price on
surrender to the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the
principal amount thereof to be redeemed and that on and after the
Redemption Date, on surrender for cancellation of that Security to the
Paying Agent, a new Security or Securities in the aggregate principal
amount equal to the unredeemed portion thereof will be issued without
charge to the Holder;
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(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and the name and address of
the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if that is
the case; and
(7) the CUSIP number, if any, relating to those Securities. Notice of
redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, at the Company's written request, by the
Trustee in the name and at the expense of the Company.
Section 3.05 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price.
Upon surrender to the Paying Agent, those Securities called for redemption
shall be paid at the Redemption Price, but interest installments whose
maturity is on or prior to that Redemption Date will be payable on the
relevant Interest Payment Dates to the Holders of record at the close of
business on the relevant record dates specified pursuant to Section 2.01.
Section 3.06 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or the Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.06) an amount of
money in same day funds sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on and any Additional Amounts with respect to, the Securities or
portions thereof which are to be redeemed on that date, other than Securities
or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of that Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not those Securities are presented for payment,
and the Holders of those Securities shall have no further rights with respect
to those Securities except for the right to receive the Redemption Price on
surrender of those Securities. If any Security called for redemption shall
not be so paid on surrender thereof for redemption, the principal of and
premium, if any, any Additional Amounts, and, to the extent lawful, accrued
interest thereon shall, until paid, bear interest from the Redemption Date at
the rate specified pursuant to Section 2.01 or provided in the Securities or,
in the case of Original Issue Discount Securities, their initial yield to
maturity.
Section 3.07 SECURITIES REDEEMED OR PURCHASED IN PART.
Upon surrender to the Paying Agent of a Security to be redeemed in part,
the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of that Security without service charge a new Security or
Securities, of the same series and of any authorized denomination as
requested by that Holder in aggregate principal amount equal to, and in
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exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed.
Section 3.08 PURCHASE OF SECURITIES.
Unless otherwise specified as contemplated by Section 2.01, the Company
and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Any such
acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by those Securities. Any
Securities purchased or acquired by the Company may be delivered to the
Trustee for cancellation and, on that cancellation, the indebtedness
represented thereby shall be deemed to be satisfied. Section 2.13 shall
apply to all Securities so delivered.
Section 3.09 MANDATORY AND OPTIONAL SINKING FUNDS.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of the minimum amount provided for
by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.10. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of that series and by this Article III.
Section 3.10 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may deliver outstanding Securities of a series (other than
any previously called for redemption) and may apply as a credit Securities of
a series that have been redeemed either at the election of the Company
pursuant to the terms of those Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of those
Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of that series required to be
made pursuant to the terms of that series of Securities; provided that those
Securities have not been previously so credited. Those Securities shall be
received and credited for that purpose by the Trustee at the Redemption Price
specified in those Securities for redemption through operation of the sinking
fund, and the amount of that sinking fund payment shall be reduced
accordingly.
Section 3.11 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate of the Company 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, that is to be satisfied by payment of cash and the
portion thereof, if any, that is to be satisfied by delivery of or by
crediting Securities of that series pursuant to Section 3.10 and will also
deliver to the Trustee any Securities to be so delivered. Failure of the
Company to timely deliver that Officers' Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute the election of the Company (i) that the mandatory
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sinking fund payment for that series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of that series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to that series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 (or the Dollar equivalent thereof based on the applicable
Exchange Rate on the date of original issue of the applicable Securities) or
a lesser sum if the Company shall so request with respect to the Securities
of any particular series, that cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of that series at
the sinking fund redemption price together with accrued interest to the date
fixed for redemption. If that amount shall be $100,000 (or the Dollar
equivalent thereof as aforesaid) or less and the Company makes no such
request, then it shall be carried over until a sum in excess of $100,000 (or
the Dollar equivalent thereof as aforesaid) is available. Not less than 30
days before each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed on that sinking fund payment date in the manner
specified in Section 3.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.04. That notice having been duly given, the redemption of those
Securities shall be made on the terms and in the manner stated in Sections
3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
Section 4.01 PAYMENT OF SECURITIES.
The Company shall pay the principal of, premium (if any) and interest on
and any Additional Amounts with respect to the Securities of each series on
the dates and in the manner provided in the Securities of that series and in
this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent, other than the
Company or a Subsidiary of the Company, holds on that date money deposited by
the Company designated for and sufficient to pay all principal, premium (if
any), interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal of and premium (if
any) on Securities of any series, at a rate equal to the then applicable
interest rate on the Securities of that series to the extent lawful; and it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest on and any overdue
payments of Additional Amounts with respect to Securities of that series
(without regard to any applicable grace period) at the same rate to the
extent lawful.
Section 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency (which may be an office of the Trustee, the
Registrar or the Paying Agent)
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where Securities of that series may be presented for registration of transfer or
exchange, where Securities of that series may be presented for payment and where
notices and demands to or on the Company in respect of the Securities of that
series and this Indenture may be served. Unless otherwise designated by the
Company by written notice to the Trustee, that office or agency shall be the
office of the Trustee in The City of New York, which on the date hereof is
located at --------------------. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of that 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,
those presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all those purposes and may from time to
time rescind those designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for those purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 4.03 SEC REPORTS; FINANCIAL STATEMENTS.
(a) The Company shall file with the Trustee, within 15 days after it
files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of those portions of
any of the foregoing as the SEC may by rules and regulations prescribe)
that the Company is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act. The Company shall also comply with the
provisions of TIA Section 314(a).
(b) If the Company is not subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company shall furnish to all Holders of Rule
144A Securities and prospective purchasers of Rule 144A Securities
designated by the Holders of Rule 144A Securities, promptly on their
request, the information required to be delivered pursuant to Rule
144A(d)(4) promulgated under the Securities Act of 1933, as amended.
Section 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, a statement signed by an
Officer of the Company, which need not constitute an Officers' Certificate,
complying with TIA Section 314(a)(4) and stating that, in the course of
performance by the signing Officer of the Company of his or her duties as
such Officer of the Company, he or she would normally obtain knowledge of
the keeping, observing, performing and fulfilling by the Company of its
obligations under this Indenture, and further stating that, to the best of
his or her knowledge, the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of
24
which that Officer may have knowledge and what action the Company is taking
or proposes to take with respect thereto).
(b) The Company shall, so long as Securities of any series are
outstanding, deliver to the Trustee, promptly on any Officer of the Company
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying that Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.05 EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence and the existence of each of its Subsidiaries and all rights
(charter and statutory) of the Company and its Subsidiaries, provided that
the Company shall not be required to preserve the existence of any Subsidiary
of the Company or any such right if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries taken as a whole and that the loss thereof
would not have a material adverse effect on the business, operations, assets
or financial condition of the Company and its Subsidiaries taken as a whole
and would not have any material adverse effect on the payment and performance
of the obligations of the Company under the Securities and this Indenture.
Section 4.06 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist on, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company 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.
Section 4.07 ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of that
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series,
that mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 4.07 to the extent that, in that context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section 4.07, and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
25
construed as excluding Additional Amounts in those provisions hereof where that
express mention is not made.
Unless otherwise provided pursuant to Section 2.01 with respect to
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least ten days prior to the first Interest Payment
Date with respect to that series of Securities (or if the Securities of that
series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether that payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then that Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on those payments to those Holders of Securities, and the Company will pay to
that Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for and to hold them
harmless against any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 4.07.
ARTICLE V
SUCCESSORS
Section 5.01 LIMITATIONS ON MERGERS, CONSOLIDATIONS AND OTHER
TRANSACTIONS.
The Company shall not, in any transaction or series of related
transactions, consolidate with any other Person into, or merge into, any other
Person, or sell, lease, convey, transfer or otherwise dispose of its assets
substantially as an entirety to any Person, unless:
(1) the Person formed by that consolidation or into which the Company
is merged, or to which that sale, lease, conveyance, transfer or other
disposition shall be made (collectively, the "Successor"), expressly
assumes by supplemental indenture the due and punctual payment of the
principal of (and premium, if any) and interest on and Additional Amounts
with respect to all the Securities and the performance of the Company's
covenants and obligations under this Indenture and the Securities;
(2) immediately after giving effect to that transaction or series of
related transactions, no Default or Event of Default shall have occurred
and be continuing; and
(3) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that the transaction and that
supplemental indenture comply with this Indenture.
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Section 5.02 SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger of the Company or any sale, lease,
conveyance, transfer or other disposition of the assets of the Company
substantially as an entirety in accordance with Section 5.01, any Successor
formed by that consolidation or into or with which the Company is merged or to
which that sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of
the Company under this Indenture and the Securities with the same effect as if
that Successor had been named as the Company herein and the predecessor Company,
in the case of a sale, conveyance, transfer or other disposition, shall be
released from all obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
Unless either inapplicable to a particular series or specifically deleted
or modified in or pursuant to the supplemental indenture or Board Resolution
establishing that series of Securities or in the form of Security for that
series, an "Event of Default," wherever used herein with respect to Securities
of any series, occurs if:
(1) the Company defaults in the payment of interest on or any
Additional Amounts with respect to any Security of that series when the
same becomes due and payable and that default continues for a period of 30
days;
(2) the Company defaults in the payment of (A) the principal of any
Security of that series at its Maturity or (B) premium (if any) on any
Security of that series when the same becomes due and payable;
(3) the Company defaults in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, and that default
continues for a period of 30 days;
(4) the Company fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of that series or this
Indenture (other than an agreement, covenant or provision that has
expressly been included in this Indenture solely for the benefit of one or
more series of Securities other than that series) which shall not have been
remedied within the specified period after written notice, as specified in
the last paragraph of this Section 6.01;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
27
(C) consents to the appointment of a Bankruptcy Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that remains unstayed and in effect for 90 days and
that:
(A) is for relief against the Company as debtor in an involuntary
case,
(B) appoints a Bankruptcy Custodian of the Company or a
Bankruptcy Custodian for all or substantially all of the property of
the Company, or
(C) orders the liquidation of the Company; or
(7) any other Event of Default provided with respect to Securities of
that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of a Default
unless a Trust Officer at the Corporate Trust Office of the Trustee receives
written notice at the Corporate Trust Office of the Trustee of that Default
with specific reference to that Default.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the
principal of, premium (if any) or interest on or Additional Amounts with
respect to any Security is payable in a currency or currencies (including a
composite currency) other than Dollars and such currency or currencies are
not available to the Company for making payment thereof due to the imposition
of exchange controls or other circumstances beyond the control of the Company
(a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making that payment in Dollars in
an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the Exchange Rate on
the date of that payment, or, if that rate is not then available, on the
basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 6.01, any payment made under such
circumstances in Dollars where the required payment is in a currency other
than Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the Company shall
give written notice thereof to the Trustee; and the Trustee, promptly after
receipt of that notice, shall give notice thereof in the manner provided in
Section 12.02 to the Holders. Promptly after the making of any payment in
Dollars as a result of a Conversion Event, the Company shall give notice in
the manner provided in Section 12.02 to the Holders, setting forth the
applicable Exchange Rate and describing the calculation of those payments.
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A Default under clause (4) or (7) of this Section 6.01 is not an Event
of Default until the Trustee notifies the Company, or the Holders of at least
25% in principal amount of the then outstanding Securities of the series
affected by that Default (or, in the case of a Default under clause (4) of
this Section 6.01, if outstanding Securities of other series are affected by
that Default, then at least 25% in principal amount of the then outstanding
Securities so affected) notify the Company and the Trustee, of the Default,
and the Company fails to cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
Section 6.02 ACCELERATION.
If an Event of Default with respect to any Securities of any series at
the time outstanding (other than an Event of Default specified in clause (5)
or (6) of Section 6.01 hereof) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Securities of the series affected by that default (or,
in the case of an Event of Default described in clause (4) of Section 6.01,
if outstanding Securities of other series are affected by that Default, then
at least 25% in principal amount of the then outstanding Securities so
affected) by notice to the Company and the Trustee, may declare the principal
of (or, if any of those Securities are Original Issue Discount Securities,
that portion of the principal amount as may be specified in the terms of that
series) and all accrued and unpaid interest on all then outstanding
Securities of that series or of all series, as the case may be, to be due and
payable. Upon any such declaration, the amounts due and payable on those
Securities shall be due and payable immediately. If an Event of Default
specified in clause (5) or (6) of Section 6.01 hereof occurs, those amounts
shall ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the then outstanding
Securities of the series affected by that default or all series, as the case
may be, by written notice to the Trustee may rescind an acceleration and its
consequences (other than nonpayment of principal of or premium or interest on
or any Additional Amounts with respect to the Securities) if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default with respect to Securities of that series (or of all series, as the
case may be) have been cured or waived, except nonpayment of principal,
premium, interest or any Additional Amounts that has become due solely
because of the acceleration.
Section 6.03 OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of, or premium, if any, or interest on the Securities of
that series or to enforce the performance of any provision of the Securities of
that series or this Indenture.
The Trustee may maintain a proceeding with respect to Securities of any
series even if it does not possess any of the Securities of that series or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing on an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
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Section 6.04 WAIVER OF DEFAULTS.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the then outstanding Securities of any series or of all
series (acting as one class) by notice to the Trustee may waive an existing
or past Default or Event of Default with respect to that series or all
series, as the case may be, and its consequences (including waivers obtained
in connection with a tender offer or exchange offer for Securities of that
series or all series or a solicitation of consents in respect of Securities
of that series or all series, provided that in each case that offer or
solicitation is made to all Holders of then outstanding Securities of that
series or all series (but the terms of that offer or solicitation may vary
from series to series)), except (1) a continuing Default or Event of Default
in the payment of the principal of, or premium, if any, or interest on or any
Additional Amounts with respect to any Security or (2) a continued Default in
respect of a provision that under Section 9.02 cannot be amended or
supplemented without the consent of each Holder affected. Upon any such
waiver, that Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.05 CONTROL BY MAJORITY.
With respect to Securities of any series, the Holders of a majority in
principal amount of the then outstanding Securities of that series may direct
in writing the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it relating to or arising under an Event of Default described in clause (1),
(2), (3) or (7) of Section 6.01, and with respect to all Securities, the
Holders of a majority in principal amount of all the then outstanding
Securities affected may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it not relating to or arising
under such an Event of Default. However, the Trustee may refuse to follow
any direction that conflicts with applicable law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders,
or that may involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that
is not inconsistent with that direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to
it in its sole discretion from Holders directing the Trustee against all
losses and expenses caused by taking or not taking that action.
Section 6.06 LIMITATIONS ON SUITS.
Subject to Section 6.07 hereof, a Holder of a Security of any series may
pursue a remedy with respect to this Indenture or the Securities of that
series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to that series;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
30
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during that 60-day period, the Holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and premium, if any,
and interest on and any Additional Amounts with respect to that Security, on
or after the respective due dates expressed in that Security, or to bring
suit for the enforcement of any such payment on or after those respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in clause (1) or (2) of Section 6.01
hereof occurs and is continuing with respect to Securities of any series, the
Trustee is authorized to recover judgment in its own name and as trustee of
an express trust against the Company for the amount of principal, premium (if
any), interest and any Additional Amounts remaining unpaid on the Securities
of that series, and interest on overdue principal and premium, if any, and,
to the extent lawful, interest on overdue interest, and 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.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents and to take such actions, including participating as a member, voting
or otherwise, of any committee of creditors, as may be necessary or advisable 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 the Holders allowed in any judicial proceeding relative to the
Company or its creditors or properties and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any Bankruptcy Custodian in any such judicial
proceeding is hereby authorized by each Holder to make those payments to the
Trustee, and in the event that the Trustee shall consent to the making of those
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its
31
agents and counsel, and any other amounts due the Trustee under Section 7.07 out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Securities may be entitled to receive in that proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
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 Securities
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 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article VI, subject
to Article X, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in
respect of which or for the benefit of which that money has been collected,
for principal, premium (if any), interest and any Additional Amounts
ratably, without preference or priority of any kind, according to the
amounts due and payable on those Securities for principal, premium (if
any), interest and any Additional Amounts, respectively; and
Third: to the Company.
The Trustee, on prior written notice to the Company, may fix record dates
and payment dates for any payment to Holders pursuant to this Article VI.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining a judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, premium (if any) or
interest on or Additional Amounts with respect to the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Business Day next preceding that on which final
judgment is given. Neither the Company nor the Trustee shall be liable for
any shortfall nor shall it benefit from any windfall in payments to Holders
of Securities under this Section 6.10 caused by a change in exchange rates
between the time the amount of a judgment against it is calculated as above
and the time the Trustee converts the Judgment Currency into the Required
Currency to make payments under this Section to Holders of Securities, but
payment of that judgment shall discharge all amounts owed by the Company on
the claim or claims underlying that judgment.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
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and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the then outstanding Securities of
any series.
ARTICLE VII
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default with respect to the Securities of any
series has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to the
Securities of that series, and use the same degree of care and skill in
that exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, 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, on certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine those
certificates and opinions to determine whether, on their face, they
appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to the
provisions of this Section 7.01.
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(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives
indemnity reasonably satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law. All money received by the Trustee with
respect to Securities of any series shall, until applied as herein
provided, be held in trust for the payment of the principal of, premium (if
any) and interest on and Additional Amounts with respect to the Securities
of that series.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
instruction, an Officers' Certificate or an Opinion of Counsel or both to
be provided. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on that instruction, Officers'
Certificate or Opinion of Counsel. The Trustee may consult with counsel,
and the written advice of that 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.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers conferred on it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
Section 7.03 MAY HOLD SECURITIES.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or any of
its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights and duties. However, the Trustee
is subject to Sections 7.10 and 7.11.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the
Company's use of the proceeds from the
34
Securities or any money paid to the Company or upon the Company's direction
under any provision hereof; it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee;
and it shall not be responsible for any statement or recital herein or any
statement in the Securities other than its certificate of authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and it is known to the Trustee, the Trustee
shall mail to Holders of Securities of that series a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium (if any) and
interest on and Additional Amounts or any sinking fund installment with
respect to the Securities of that series, the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Holders of Securities of
that series.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 of each year after the execution of this
Indenture, the Trustee shall mail to Holders of a series and the Company a brief
report dated as of that reporting date that complies with TIA Section 313(a);
provided, however, that if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date with respect to a series,
no report need be transmitted to Holders of that series. The Trustee also shall
comply with TIA Section 313(b). The Trustee shall also transmit by mail all
reports if and as required by TIA Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of a series
of Securities shall be filed by the Company with the SEC and each securities
exchange, if any, on which the Securities of that series are listed. The
Company shall notify the Trustee if and when any series of Securities is
listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
The Company agrees to pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder.
The Trustee's compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company agrees to reimburse the Trustee
on request for all reasonable disbursements, advances and expenses incurred
by it. Those expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company hereby indemnifies the Trustee against any loss, liability
or expense incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, except as set forth in
the next paragraph. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel, and the Company shall pay the reasonable fees and expenses
of that counsel. The Company need not pay for any settlement made without
its consent.
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The Company shall not be obligated to reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or
bad faith.
To secure the payment obligations of the Company in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of any series. That lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only on the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with respect to the
Securities of one or more series by so notifying the Company. The Holders of
a majority in principal amount of the then outstanding Securities of any
series may remove the Trustee with respect to the Securities of that series
by so notifying the Trustee and the Company. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or
more series, the Company shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of those series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series). Within one year after the successor Trustee with respect
to the Securities of any series takes office, the Holders of a majority in
principal amount of the Securities of that series may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series does
not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the then outstanding Securities of that
36
series may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of that series.
If the Trustee with respect to the Securities of a series fails to
comply with Section 7.10, any Holder of Securities of that series may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee with respect to the Securities of
that series.
In case of the appointment of a successor Trustee with respect to all
Securities, each such successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
retiring Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more (but not all) series shall execute and deliver an indenture supplemental
hereto in which each successor Trustee shall accept that appointment and that
(1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of that successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
confirm that all the rights, powers and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee
and (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. Nothing herein or in that
supplemental indenture shall constitute those Trustees co-trustees of the
same trust, and each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee. Upon the execution and delivery of that
supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, and each such
successor Trustee shall have all the rights, powers and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of that successor Trustee relates. On the request of
the Company or any successor Trustee, that retiring Trustee shall transfer to
that successor Trustee all property held by that retiring Trustee as Trustee
with respect to the Securities of that or those series to which the
appointment of that successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees pursuant to this
Section 7.08, the obligations of the Company under Section 7.07 shall
continue for the benefit of the retiring Trustee or Trustees.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
Subject to Section 7.10, if the Trustee consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business
to, another corporation, the successor corporation without any further act
shall be the successor Trustee; provided, however, that in the
37
case of a transfer of all or substantially all of its corporate trust business
to another corporation, the transferee corporation expressly assumes all of the
Trustee's liabilities hereunder.
In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to that authenticating Trustee may adopt that authentication
and deliver the Securities so authenticated; and in case at that time any of
the Securities shall not have been authenticated, any successor to the
Trustee may authenticate those Securities either in the name of any
predecessor hereunder or in the name of the successor to the Trustee; and in
all those cases those certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate
of the Trustee shall have.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
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,
any State thereof or the District of Columbia and authorized under those laws
to exercise corporate trust power, shall be subject to supervision or
examination by Federal or State (or the District of Columbia) authority and
shall have, or be a Subsidiary of a bank or bank holding company having, a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements
of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject
to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in
the penultimate paragraph of TIA Section 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to and shall comply with the provisions of TIA
Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 TERMINATION OF COMPANY'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect with respect to
the Securities of a series (except as to any surviving rights of conversion or
of registration of transfer or exchange of Securities expressly provided for
herein and except that the Company's obligations under Section 7.07, the
Trustee's and Paying Agent's obligations under Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII shall
survive), and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging the satisfaction and discharge of this Indenture with
respect to the Securities of that series, when:
(1) either
38
(A) all outstanding Securities of that series theretofore
authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered to the
Trustee for cancellation; or
(B) all outstanding Securities of that 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
of redemption by the Trustee in the name, and at the expense, of
the Company, and, in the case of clause (i), (ii) or (iii) above,
the Company has irrevocably deposited or caused to be deposited
with the Trustee as funds (immediately available to the Holders
in the case of clause (i)) in trust for that purpose (x) cash in
an amount, or (y) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will
ensure the availability of cash in an amount or (z) a combination
thereof, which will be sufficient, in the opinion (in the case of
clauses (y) and (z)) of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge the entire indebtedness on the Securities of that
series for principal and any interest and any Additional Amounts
to the date of that deposit (in the case of Securities which have
become due and payable) or for principal, premium, if any,
interest and any Additional Amounts to the Stated Maturity or
Redemption Date, as the case may be; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
2.01, to be applicable to the Securities of that series;
(2) the Company has paid or caused to be paid all other sums payable
by it hereunder with respect to the Securities of that series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture with respect to the Securities of that series have been complied
with, together with an Opinion of Counsel to the same effect.
(b) Unless this Section 8.01(b) is specified as not being applicable
to Securities of a series as contemplated by Section 2.01, the Company may
terminate certain of its
39
obligations under this Indenture ("covenant defeasance") with respect to the
Securities of a series if:
(1) the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of Securities of that
series, (i) money in the currency in which payment of the Securities of
that series is to be made in an amount, or (ii) Government Obligations with
respect to that series, maturing as to principal and interest at such times
and in such amounts as will ensure the availability of money in the
currency in which payment of the Securities of that series is to be made in
an amount or (iii) a combination thereof, that is sufficient, in the
opinion (in the case of clauses (ii) and (iii)) of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay, without consideration of the
reinvestment of any such amounts and after payment of all taxes or other
charges or assessments in respect thereof payable by the Trustee, the
principal of and premium (if any) and interest on and any Additional
Amounts with respect to all Securities of that series on each date that
such principal, premium (if any), interest or Additional Amounts are due
and payable and (at the Stated Maturity thereof or on redemption as
provided in Section 8.01(e)) to pay all other sums payable by it hereunder;
provided that the Trustee shall have been irrevocably instructed to apply
that money and/or the proceeds of those Government Obligations to the
payment of said principal, premium (if any), interest and Additional
Amounts with respect to the Securities of that series as the same shall
become due;
(2) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture with respect to the Securities of that series have been complied
with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of
that series shall have occurred and be continuing on the date of that
deposit;
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel from counsel reasonably acceptable to the Trustee or a tax ruling
to the effect that the Holders of Securities of that series will not
recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section 8.01(b) and will
be subject to Federal income tax on the same amount and in the same manner
and at the same times as would have been the case if that option had not
been exercised;
(5) the Company has complied with any additional conditions specified
pursuant to Section 2.01 to be applicable to the discharge of Securities of
that series pursuant to this Section 8.01; and
40
(6) that deposit and discharge shall not cause the Trustee to have a
conflicting interest as defined in TIA Section 310(b).
In that event, this Indenture shall cease to be of further effect
(except as set forth in this paragraph), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge under this Indenture. However, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04,
the Trustee's and Paying Agent's obligations in Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII
shall survive until all Securities of that series are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.07 and the Trustee's
and Paying Agent's obligations in Section 8.03 shall survive with respect to
Securities of that series.
After making the irrevocable deposit pursuant to this Section 8.01(b)
and following satisfaction of the other conditions set forth herein, the
Trustee on request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture with respect to the Securities of
that series, except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of
or premium (if any) or interest on or any Additional Amounts with respect to
the Securities, the Government Obligations shall be payable as to principal
or interest on or before that payment date in such amounts as will provide
the necessary money. Any such Government Obligations shall not be callable
at the issuer's option.
(c) If the Company has previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified
pursuant to Section 2.01 that are expressly applicable only to covenant
defeasance) with respect to Securities of a series, then, unless this Section
8.01(c) is specified as not being applicable to Securities of that series as
contemplated by Section 2.01, the Company may elect to be discharged ("legal
defeasance") from its obligations to make payments with respect to Securities of
that series, if:
(1) no Default or Event of Default under clauses (5) and (6) of
Section 6.01 hereof shall have occurred at any time during the period
ending on the 91st day after the date of deposit contemplated by Section
8.01(b) (it being understood that this condition shall not be deemed
satisfied until the expiration of that period);
(2) unless otherwise specified with respect to Securities of that
series as contemplated by Section 2.01, the Company has delivered to the
Trustee an Opinion of Counsel from counsel reasonably acceptable to the
Trustee to the effect referred to in Section 8.01(b)(4) with respect to
that legal defeasance, which opinion is based on (i) a private ruling of
the Internal Revenue Service addressed to the Company, (ii) a published
ruling of the Internal Revenue Service or (iii) a change in the applicable
federal income tax law (including regulations) after the date of this
Indenture;
41
(3) the Company has complied with any other conditions specified
pursuant to Section 2.01 to be applicable to the legal defeasance of
Securities of that series pursuant to this Section 8.01(c); and
(4) the Company has delivered to the Trustee a Company Request
requesting legal defeasance of the Securities of that series and an
Officers' Certificate stating that all conditions precedent with respect to
legal defeasance of the Securities of that series have been complied with,
together with an Opinion of Counsel to the same effect.
In that event, the Company will be discharged from its obligations under
this Indenture and the Securities of that series to pay principal of, premium
(if any) and interest on, and any Additional Amounts with respect to,
Securities of that series, the Company's obligations under Sections 4.01,
4.02 and 5.01 shall terminate with respect to those Securities, and the
entire indebtedness of the Company evidenced by those Securities shall be
deemed paid and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to that series as contemplated by Section 2.01, the Company may
terminate any or all of its obligations under this Indenture with respect to
Securities of a series and any or all of its obligations under the Securities of
that series if it fulfills such other means of satisfaction and discharge as may
be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of that series.
(e) If Securities of any series subject to subsections (a), (b), (c)
or (d) of this Section 8.01 are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory or optional sinking fund provisions, the terms of the applicable trust
arrangement shall provide for that redemption, and the Company shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Section 8.02 APPLICATION OF TRUST MONEY.
The Trustee or a trustee reasonably satisfactory to the Trustee and the
Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the
money from Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of the
series with respect to which the deposit was made. Money and securities held
in trust are not subject to Article X.
Section 8.03 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company at
any time on the written request of the Company any excess money or Government
Obligations (or proceeds therefrom) held by them.
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Subject to the requirements of any applicable abandoned property laws,
the Trustee and the Paying Agent shall pay to the Company on written request
any money held by them for the payment of principal, premium (if any),
interest or any Additional Amounts that remain unclaimed for two years after
the date on which that payment shall have become due. After payment to the
Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with
respect to that money shall cease.
Section 8.04 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or
Government Obligations deposited with respect to Securities of any series in
accordance with Section 8.01 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting that application, the obligations of the
Company under this Indenture with respect to the Securities of that series
and under the Securities of that series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01 until such time as
the Trustee or the Paying Agent is permitted to apply all such money or
Government Obligations in accordance with Section 8.01; provided, however,
that if the Company has made any payment of principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Securities because
of the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of those Securities to receive such payment from
the money or Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
Section 9.01 WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this Indenture or
the Securities or waive any provision hereof or thereof without the consent
of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to provide for the issuance of bearer
Securities (with or without coupons);
(4) to provide any security for any series of Securities or to add
Guarantees of any series of Securities;
(5) to comply with any requirement in order to effect or maintain the
qualification of this Indenture under the TIA;
(6) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if those covenants are to
be for the benefit of less than
43
all series of Securities, stating that those covenants are expressly being
included solely for the benefit of that series), or to surrender any right
or power herein conferred on the Company;
(7) to add any additional Events of Default with respect to all or any
series of the Securities (and, if any such Event of Default is applicable
to less than all series of Securities, specifying the series to which that
Event of Default is applicable);
(8) 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 Security of any series created prior to the
execution of that amendment or supplemental indenture that is adversely
affected in any material respect by that change in or elimination of that
provision;
(9) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 8.01; provided,
however, that any such action shall not adversely affect the interest of
the Holders of Securities of that series or any other series of Securities
in any material respect; or
(11) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.08.
Upon the request of the Company, accompanied by a Board Resolution, and
upon receipt by the Trustee of the documents described in Section 9.06, the
Trustee shall, subject to Section 9.06, join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms
of this Indenture and make any further appropriate agreements and
stipulations that may be therein contained.
Section 9.02 WITH CONSENT OF HOLDERS.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture with the written consent
(including consents obtained in connection with a tender offer or exchange
offer for Securities of any one or more series or all series or a
solicitation of consents in respect of Securities of any one or more series
or all series, provided that in each case that offer or solicitation is made
to all Holders of then outstanding Securities of each such series (but the
terms of that offer or solicitation may vary from series to series)) of the
Holders of at least a majority in principal amount of the then outstanding
Securities of all series affected by that amendment or supplement (acting as
one class).
Upon the request of the Company, accompanied by a Board Resolution, and
upon the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, and upon receipt
44
by the Trustee of the documents described in Section 9.06, the Trustee shall,
subject to Section 9.06, join with the Company in the execution of that
amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if that consent approves the
substance thereof.
The Holders of a majority in principal amount of the then outstanding
Securities of one or more series or of all series may waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to Securities of that series (including waivers obtained in
connection with a tender offer or exchange offer for Securities of that
series or a solicitation of consents in respect of Securities of that series,
provided that in each case that offer or solicitation is made to all Holders
of then outstanding Securities of that series (but the terms of that offer or
solicitation may vary from series to series)).
However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal of, premium on or any mandatory sinking fund
payment with respect to, or change the Stated Maturity of, any Security or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable on a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable on the redemption of any
Security or change the time at which any Security may or shall be redeemed;
(5) change any obligation of the Company to pay Additional Amounts
with respect to any Security;
(6) change the coin or currency or currencies (including composite
currencies) in which any Security or any premium, interest or Additional
Amounts with respect thereto are payable;
(7) impair the right to institute suit for the enforcement of any
payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Security pursuant to Sections 6.07 and 6.08,
except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of this
Indenture pursuant to Section 6.04 or 6.07 or make any change in this
sentence of Section 9.02;
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(9) modify the provisions of this Indenture with respect to the
subordination of any Security in a manner adverse to the Holder thereof; or
(10) waive a continuing Default or Event of Default in the payment of
principal of, premium (if any) or interest on or Additional Amounts with
respect to the Securities.
An amendment under this Section may not make any change that adversely
affects the rights under Article X of any holder of an issue of Senior
Indebtedness unless the holders of such issue pursuant to the terms of such
issue terms consent to the change.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of that series with respect
to that covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from that Holder) may
be subject to the requirement that such Holder shall have been the Holder of
record of any Securities with respect to which that consent is required or
sought as of a date identified by the Company in a notice furnished to
Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of each Security affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail that notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities shall
comply in form and substance with the TIA as then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
The Company may, but shall not be obligated to, fix a record date (which
need not comply with Section 316(c) of the TIA) for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver or to take any other action under this
46
Indenture. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were Holders at that record
date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to that amendment, supplement or waiver or to revoke any
consent previously given, whether or not those Persons continue to be Holders
after that record date. No consent shall be valid or effective for more than 90
days after that record date unless consents from Holders of the principal amount
of Securities required hereunder for that amendment or waiver to be effective
shall have also been given and not revoked within that 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it is of the type described in any of clauses (1)
through (9) of Section 9.02 hereof. In that case, the amendment, supplement
or waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Security.
Section 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment or supplement changes the terms of an outstanding
Security, the Company may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
at the request of the Company regarding the changed terms and return it to
the Holder. Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the validity
of that amendment or supplement.
Securities of any series authenticated and delivered after the execution
of any amendment or supplement may, and shall if required by the Company,
bear a notation in form approved by the Company as to any matter provided for
in that amendment or supplement.
Section 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign that
amendment or supplement, the Trustee shall be entitled to receive, and,
subject to Section 7.01 hereof, shall be fully protected in relying on, an
Opinion of Counsel provided at the expense of the Company as conclusive
evidence that such amendment or supplement is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid
and binding on the Company in accordance with its terms.
ARTICLE X
SUBORDINATED SECURITIES
Section 10.01 SUBORDINATED SECURITIES.
The provisions of this Article X shall be applicable to Securities of
any series (Securities of such series referred to in this Article X as
"Subordinated Securities") designated, pursuant to Section 2.01(21), as
subordinated to Senior Indebtedness. The Company and each Holder of a
Subordinated Security, by his or her acceptance thereof, agree that (a) the
payment of the
47
principal of, premium (if any) and interest on and any Additional Amounts with
respect to each and all the Subordinated Securities and (b) any other payment in
respect of the Subordinated Securities, including on account of the acquisition
or redemption of Subordinated Securities by the Company, is subordinated, to the
extent and in the manner provided in this Article X, to the prior payment in
full of all Senior Indebtedness of the Company, whether outstanding at the date
of this Indenture or thereafter created, incurred, assumed or guaranteed, and
that these subordination provisions are for the benefit of the holders of Senior
Indebtedness of the Company.
Each Holder of a Subordinated Security, by his or her acceptance
thereof, acknowledges and agrees that the provisions of this Article X are,
and are intended to be, an inducement and a consideration to all Persons who,
in reliance on such provisions, become holders of, or continue to hold,
Senior Indebtedness of the Company, and such provisions are made for the
benefit of the holders of Senior Indebtedness of the Company, and those
holders are made obligees hereunder, and any one or more of them may enforce
such provisions.
Section 10.02 NO PAYMENT ON SUBORDINATED SECURITIES IN CERTAIN
CIRCUMSTANCES.
(a) Unless otherwise specified with respect to Subordinated Securities
of a series as contemplated by Section 2.01, no payment shall be made by or
on behalf of the Company on account of the principal of, premium (if any)
or interest on or any Additional Amounts with respect to the Subordinated
Securities of any series or to acquire any of those Subordinated Securities
(including any repurchases of those Subordinated Securities pursuant to the
provisions thereof at the option of the Holder of those Subordinated
Securities) for cash or property (other than Junior securities of the
Company), or on account of any redemption provisions of those Subordinated
Securities, in the event of default in payment of any principal of, premium
(if any) or interest on any Senior Indebtedness of the Company when the
same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise (a "Payment
Default"), unless and until that Payment Default has been cured or waived
or otherwise has ceased to exist.
(b) Unless otherwise specified with respect to Subordinated Securities
of a series as contemplated by Section 2.01, no payment shall be made by or
on behalf of the Company on account of the principal of, premium (if any)
or interest on or any Additional Amounts with respect to the Subordinated
Securities of any series or to acquire any of those Subordinated Securities
(including any repurchases of those Subordinated Securities pursuant to the
provisions thereof at the option of the Holder of those Subordinated
Securities) for cash or property (other than Junior securities of the
Company), or on account of the redemption provisions of those Subordinated
Securities, in the event of any event of default (other than a Payment
Default) with respect to any Designated Senior Indebtedness permitting the
holders of that Designated Senior Indebtedness (or a trustee or other
representative on behalf of the holders thereof) to declare that Designated
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, on written notice thereof to the
Company and the Trustee by any holders of Designated Senior Indebtedness
(or a trustee or other representative on behalf of the holders thereof)
(the "Payment Blocking Notice"), unless
48
and until that event of default shall have been cured or waived or
otherwise has ceased to exist; provided, that such payments may not be
prevented pursuant to this Section 10.02(b) for more than 179 days after an
applicable Payment Blocking Notice has been received by the Trustee unless
the Designated Senior Indebtedness in respect of which that event of
default exists has been declared due and payable in its entirety, in which
case no such payment may be made until that acceleration has been rescinded
or annulled or that Designated Senior Indebtedness has been paid in full.
Unless otherwise specified with respect to Subordinated Securities of a
series as contemplated by Section 2.01, no event of default that existed or
was continuing on the date of any Payment Blocking Notice (whether or not
that event of default is on the same issue of Designated Senior
Indebtedness) may be made the basis for the giving of a second Payment
Blocking Notice, and only one such Payment Blocking Notice may be given in
any period of 365 consecutive days.
(c) In furtherance of the provisions of Section 10.01, in the event
that, notwithstanding the foregoing provisions of this Section 10.02, any
payment or distribution of assets of the Company (other than Junior
securities of the Company) shall be received by the Trustee or the Holders
of the Subordinated Securities of any series or any Paying Agent with
respect thereto at a time when that payment or distribution was prohibited
by the provisions of this Section 10.02, then, unless that payment or
distribution is no longer prohibited by this Section 10.02, that payment or
distribution (subject to the provisions of Section 10.07) shall be received
and held in trust by the Trustee or such Holders or Paying Agent for the
benefit of the holders of Senior Indebtedness of the Company, and shall be
paid or delivered by the Trustee or such Holders or Paying Agent, as the
case may be, to the holders of Senior Indebtedness of the Company remaining
unpaid or unprovided for or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing that Senior Indebtedness of the Company may have
been issued, ratably, according to the aggregate amounts remaining unpaid
on account of that Senior Indebtedness of the Company held or represented
by each, for application to the payment of all Senior Indebtedness of the
Company in full after giving effect to all concurrent payments and
distributions to or for the holders of that Senior Indebtedness.
Section 10.03 SUBORDINATED SECURITIES SUBORDINATED TO PRIOR PAYMENT OF
ALL SENIOR INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors:
(a) the holders of all Senior Indebtedness of the Company shall first
be entitled to receive payments in full before the Holders of Subordinated
Securities of any series are entitled to receive any payment (other than in
the form of Junior securities of the Company) on account of the principal
of, premium (if any) or interest on or any Additional Amounts with respect
to those Subordinated Securities;
49
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than Junior
securities of the Company), to which the Holders of Subordinated Securities
of any series or the Trustee on behalf of those Holders would be entitled,
except for the provisions of this Article X, shall be paid by the
liquidating trustee or agent or other Person making such a payment or
distribution directly to the holders of that Senior Indebtedness or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all that Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions to the holders
of that 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 (other than Junior securities of the Company),
shall be received by the Trustee or the Holders of Subordinated Securities
of any series or any Paying Agent with respect thereto (or, if the Company
or any Affiliate of the Company is acting as its own Paying Agent, money
for any such payment or distribution shall be segregated or held in trust)
on account of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Subordinated Securities of that
series before all Senior Indebtedness of the Company is paid in full, that
payment or distribution (subject to the provisions of Section 10.07) shall
be received and held in trust by the Trustee or such Holder or Paying Agent
for the benefit of the holders of that Senior Indebtedness, or their
respective representatives, ratably according to the respective amounts of
that Senior Indebtedness held or represented by each, to the extent
necessary to make payment as provided herein of all that Senior
Indebtedness remaining unpaid after giving effect to all concurrent
payments and distributions and all provisions therefor to or for the
holders of that Senior Indebtedness, but only to the extent that as to any
holder of that Senior Indebtedness, as promptly as practical following
notice from the Trustee to the holders of that Senior Indebtedness that
such prohibited payment has been received by the Trustee, Holder(s) or
Paying Agent (or has been segregated as provided above), that holder (or a
representative therefor) notifies the Trustee of the amounts then due and
owing on that Senior Indebtedness, if any, held by that holder, and only
the amounts specified in those notices to the Trustee shall be paid to the
holders of that Senior Indebtedness.
Section 10.04 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness of the Company
as provided herein, the Holders of the Subordinated Securities shall be
subrogated (to the extent of the payments or distributions made to the
holders of that Senior Indebtedness pursuant to the provisions of this
Article X) to the rights of the holders of that Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to that
Senior Indebtedness until all amounts owing on the Subordinated Securities
shall be paid in full. For the purpose of that subrogation, no such payments
or distributions to the holders of that Senior Indebtedness by the Company,
or by or on behalf of the Holders of the Subordinated Securities by virtue of
this Article X, which otherwise would have been made to those Holders shall,
as among the Company, its creditors other than the holders of Senior
Indebtedness of the Company and those Holders, be deemed to be payment by the
Company or on account of that Senior Indebtedness, it
50
being understood that the provisions of this Article X are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Subordinated Securities, on the one hand, and the holders of that Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Subordinated
Securities would otherwise have been entitled but for the provisions of this
Article X shall have been applied, pursuant to the provisions of this Article
X, to the payment of amounts payable under Senior Indebtedness of the
Company, then those Holders shall be entitled to receive from the holders of
that Senior Indebtedness any payments or distributions received by those
holders of Senior Indebtedness of the Company in excess of the amount
sufficient to pay all amounts payable under or in respect of that Senior
Indebtedness in full.
Section 10.05 OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture or in
the Subordinated Securities is intended to or shall impair, as between the
Company and the Holders of the Subordinated Securities of any series, the
obligation of the Company, which is absolute and unconditional, to pay to
those Holders the principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Subordinated Securities of that series
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of those Holders
and creditors of the Company other than the holders of Senior Indebtedness of
the Company, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law on
default under this Indenture, subject to the rights, if any, under this
Article X, of the holders of Senior Indebtedness of the Company in respect of
cash, property or securities of the Company received on the exercise of any
such remedy. Notwithstanding anything to the contrary in this Article X or
elsewhere in this Indenture or in the Subordinated Securities, on any
distribution of assets of the Company referred to in this Article X, the
Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders
of the Subordinated Securities shall be entitled to rely on any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to those Holders for the purpose of
ascertaining the Persons entitled to participate in that distribution, the
holders of Senior Indebtedness of the Company and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
X so long as that court has been apprised of the provisions of, or the order,
decree or certificate makes reference to, the provisions of this Article X.
Section 10.06 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until a Responsible Officer of the Trustee or any
Paying Agent shall have received, no later than two Business Days prior to
that payment, written notice thereof from the Company or from one or more
holders of Senior Indebtedness of the Company or from any representative
therefor and,
51
prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Sections 7.01 and 7.02, shall be entitled in all
respects conclusively to assume that no such fact exists.
Section 10.07 APPLICATION BY TRUSTEE OF AMOUNTS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Holders of the
Subordinated Securities of the series for the benefit of which those amounts
were deposited, and, to the extent allocated for the payment of Subordinated
Securities of that series, shall not be subject to the subordination
provisions of this Article X. Otherwise, any deposit of assets with the
Trustee or the Paying Agent (whether or not in trust) for the payment of
principal of, premium (if any) or interest on or any Additional Amounts with
respect to any Subordinated Securities shall be subject to the provisions of
Sections 10.01, 10.02, 10.03 and 10.04; provided that if prior to two
Business Days preceding the date on which by the terms of this Indenture any
such assets may become distributable for any purpose (including, without
limitation, the payment of either principal of, premium (if any) or interest
on or any Additional Amounts with respect to any Subordinated Security), the
Trustee or such Paying Agent shall not have received with respect to those
assets the written notice provided for in Section 10.06, then the Trustee or
such Paying Agent shall have full power and authority to receive those assets
and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary that may be received by it on
or after that date; and provided further that nothing contained in this
Article X shall prevent the Company from making, or the Trustee from
receiving or applying, any payment in connection with the redemption of
Subordinated Securities if the first publication of notice of that redemption
(whether by mail or otherwise in accordance with this Indenture) has been
made, and the Trustee has received that payment from the Company, prior to
the occurrence of any of the contingencies specified in Section 10.02 or
10.03.
Section 10.08 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF
THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness of
the Company to enforce the subordination provisions contained in this Article
X shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with
the terms of this Indenture, regardless of any knowledge thereof that any
such holder may have or be otherwise charged with. The holders of Senior
Indebtedness of the Company may extend, renew, modify or amend the terms of
the Senior Indebtedness or any security therefor and release, sell or
exchange that security and otherwise deal freely with the Company, all
without affecting the liabilities and obligations of the parties to this
Indenture or the Holders of the Subordinated Securities.
Section 10.09 TRUSTEE TO EFFECTUATE SUBORDINATION OF SUBORDINATED
SECURITIES.
Each Holder of a Subordinated Security by his acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provisions contained in this Article X and to protect the rights of the
Holders of the Subordinated Securities pursuant to this Indenture, and
appoints the Trustee
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his attorney-in-fact for that purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors of the Company), the filing of a claim for the unpaid
balance of his Subordinated Securities in the form required in said proceedings
and cause said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in that proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of
Senior Indebtedness of the Company or their representative is hereby authorized
to have the right to file and is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Subordinated Securities. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior
Indebtedness of the Company or their representative to authorize or consent to
or accept or adopt on behalf of any Holder of Subordinated Securities any plan
of reorganization, arrangement, adjustment or composition affecting the
Subordinated Securities or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Indebtedness of the Company or their
representative to vote in respect of the claim of any Holder of the Subordinated
Securities in any such proceeding.
Section 10.10 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all of the
rights set forth in this Article X in respect of any Senior Indebtedness of
the Company at any time held by it to the same extent as any other holder of
Senior Indebtedness of the Company, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
Section 10.11 ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or premium (if
any) or interest on or any Additional Amounts with respect to the
Subordinated Securities by reason of any provision of this Article X shall
not be construed as preventing the occurrence of a Default or an Event of
Default under Section 6.01 or in any way prevent the Holders of the
Subordinated Securities from exercising any right hereunder other than the
right to receive payment on the Subordinated Securities.
Section 10.12 NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness of the Company, and shall not be liable to any of
those holders (other than for its willful misconduct or gross negligence) if
it shall in good faith mistakenly pay over or distribute to the Holders of
the Subordinated Securities or the Company or any other Person, cash,
property or securities to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article X or otherwise. Nothing
in this Section 10.12 shall affect the obligation of any other such Person to
hold that payment for the benefit of, and to pay that payment over to, the
holders of Senior Indebtedness of the Company or their representative.
Section 10.13 ARTICLE APPLICABLE TO PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article X shall in
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that case (unless the context shall otherwise require) be construed as extending
to and including that Paying Agent within its meaning as fully for all intents
and purposes as if that Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that this Section 10.13 shall not
apply to the Company or any Affiliate of the Company if it or that Affiliate
acts as Paying Agent.
ARTICLE XI
GUARANTEES
Any series of Securities may be guaranteed by one or more guarantors.
The terms and the form of any such Guarantee will be established in the
manner contemplated by Section 2.01 for that particular series of Securities.
ARTICLE XII
MISCELLANEOUS
Section 12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties
shall control.
Section 12.02 NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telex, facsimile or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Nuveen Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Trustee:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt acknowledged, if by
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facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by
the Registrar. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given
only when received.
If the Company mails a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to
the Trustee or the Company by Holders, shall be in writing, except as
otherwise set forth herein.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of that notice.
Section 12.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee at the expense of the Company:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of that
counsel, all those conditions precedent and covenants have been complied
with.
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Section 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(1) a statement that the Person making that certificate or opinion has
read that covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation on which the statements or opinions contained in that
certificate or opinion are based;
(3) a statement that, in the opinion of that Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not that covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of that Person,
that condition or covenant has been complied with.
Section 12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a Place of Payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 12.08 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, partner or other owner of
the Company, any guarantor or the Trustee (other than a stockholder, partner
or other owner which itself is the Company or a guarantor of the Securities),
as such, shall not have any liability for any obligations of the Company
under the Securities or for any obligations of the Company, any guarantor or
the Trustee under this Indenture or for any claim based on, in respect of or
by reason of those obligations or their creation. Each Holder by accepting a
Security waives and releases all that liability. The waiver and release
shall be part of the consideration for the issue of Securities.
Section 12.09 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY PRINCIPLES OF CONFLICTS OF LAWS
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THEREUNDER TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 12.11 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 12.12 SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall, to the fullest extent permitted by
applicable law, not in any way be affected or impaired thereby.
Section 12.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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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.
NUVEEN INVESTMENTS, INC.
By:
---------------------------------
Name:
Title:
------------------------------------
as Trustee
By:
---------------------------------
Name:
Title:
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