Exhibit 4.2
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PRIME GROUP REALTY TRUST
TO
BANKERS TRUST COMPANY
as Indenture Trustee
__________
FORM
OF
INDENTURE
Dated as of ________, ____
Providing for Issuance of Subordinated
Debt Securities in Series
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PRIME GROUP REALTY TRUST
Certain Sections of this Indenture relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
(S) 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .608, 610
(S) 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(S) 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .702(c)
(S) 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .703(b)
(S) 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1008
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(S) 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
i
(S) 316(a) (last sentence) . . . . . . . . . . . . . . . . . .101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104(c)
(S) 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1003
(S) 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions of General Application . . . . . . . . . . . .1
Section 101. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . . . . . . .8
Section 103. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE . . . . . . . .9
Section 104. ACTS OF HOLDERS; RECORD DATES. . . . . . . . . . . . . . . . . 10
Section 105. NOTICES, ETC., TO INDENTURE TRUSTEE AND COMPANY. . . . . . . . 11
Section 106. NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . . . . . 11
Section 107. CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . . . . . . 11
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . . . . . . 12
Section 109. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . 12
Section 110. SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . . . . . . 12
Section 111. BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . . . . 12
Section 112. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 113. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
Security Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 201. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 202. FORM OF FACE OF SECURITY . . . . . . . . . . . . . . . . . . . 13
Section 203. FORM OF REVERSE OF SECURITY. . . . . . . . . . . . . . . . . . 15
Section 204. ADDITIONAL PROVISIONS REQUIRED IN BOOK-ENTRY SECURITY. . . . . 26
Section 205. FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . 26
ARTICLE THREE
The Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . . . . . . . . 27
Section 302. DENOMINATIONS. . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . . . . 29
Section 304. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . . . . 32
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE;
RESTRICTIONS ON TRANSFER . . . . . . . . . . . . . . . . . . 32
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES . . . . . . . 38
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . . . . . . . 39
Section 308. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . . . . 41
Section 309. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 310. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . . . . 42
iii
Section 311. CUSIP NUMBERS. . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE FOUR
Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . . . . 42
Section 402. APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . . . . 44
ARTICLE FIVE
Events of Default and Remedies. . . . . . . . . . . . . . . . . . . . . . . . 44
Section 501. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 44
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT . . . . . . 45
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 46
Section 504. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . 47
Section 505. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 506. APPLICATION OF MONEY COLLECTED . . . . . . . . . . . . . . . . 48
Section 507. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . . . . 48
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 509. RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . . . . 49
Section 510. RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . 49
Section 511. DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . . . . 50
Section 512. CONTROL BY HOLDERS . . . . . . . . . . . . . . . . . . . . . . 50
Section 513. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . . . . 50
Section 514. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SIX
The Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . . . . 51
Section 602. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 51
Section 603. CERTAIN RIGHTS OF INDENTURE TRUSTEE. . . . . . . . . . . . . . 52
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES . . . . 53
Section 605. MAY HOLD SECURITIES AND SERVE AS INDENTURE TRUSTEE UNDER
OTHER INDENTURES . . . . . . . . . . . . . . . . . . . . . . 53
Section 606. MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . . 54
Section 607. COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . . . . 54
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS. . . . . . . . . . . . 55
Section 609. CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . 55
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . . . . 55
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . . . . 57
iv
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. . 58
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . . . . 58
Section 614. INVESTMENT OF CERTAIN PAYMENTS HELD BY THE INDENTURE TRUSTEE . 58
Section 615. RIGHTS AND PROTECTIONS OF INDENTURE TRUSTEE THAT ALSO ACTS
AS PAYING AGENT OR SECURITY REGISTRAR . . . . . . . . . . . 59
Section 616. APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . . . . . . 59
ARTICLE SEVEN
Holders' Lists and Reports by Indenture Trustee and Company . . . . . . . . . 61
Section 701. COMPANY TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS . . . . 61
Section 703. REPORTS BY INDENTURE TRUSTEE . . . . . . . . . . . . . . . . . 62
Section 704. REPORTS BY COMPANY . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease . . . . . 62
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS . . . . . 62
Section 802. SUCCESSOR SUBSTITUTED. . . . . . . . . . . . . . . . . . . . . 63
Section 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL . . . . . . . . . 63
ARTICLE NINE
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . . . . 64
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . . . . 65
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . 66
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . 66
Section 905. CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . . . . . . 66
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES . . . . . . 67
ARTICLE TEN
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . . . 67
Section 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . 67
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. . . . . . . 68
Section 1004. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . . . 69
Section 1005. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . . . . . 69
Section 1006. TRUST EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1007. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . . . . 70
Section 1008. COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . . . . 70
v
ARTICLE ELEVEN
Redemption of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . 71
Section 1102. ELECTION TO REDEEM: NOTICE TO INDENTURE TRUSTEE. . . . . . . . 71
Section 1103. SELECTION BY INDENTURE TRUSTEE OF SECURITIES TO BE REDEEMED. . 71
Section 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . 72
Section 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . . 73
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . . . . . . 73
Section 1107. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . . . . 73
ARTICLE TWELVE
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . 74
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. . . . . 74
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . . . . . . 74
ARTICLE THIRTEEN
Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1301. SECURITIES SUBORDINATE TO SENIOR DEBT. . . . . . . . . . . . . 75
Section 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC . . . . . . . . 75
Section 1303. ACCELERATION; SENIOR DEBT IN DEFAULT . . . . . . . . . . . . . 76
Section 1304. PAYMENT PERMITTED IF NO DEFAULT. . . . . . . . . . . . . . . . 77
Section 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT. . . . . . . . 77
Section 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. . . . . . . . . . 77
Section 1307. INDENTURE TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . 78
Section 1308. NO WAIVER OF SUBORDINATION PROVISIONS. . . . . . . . . . . . . 78
Section 1309. NOTICE TO INDENTURE TRUSTEE. . . . . . . . . . . . . . . . . . 78
Section 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1311. INDENTURE TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT . . 79
Section 1312. RIGHTS OF INDENTURE TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF INDENTURE TRUSTEE'S RIGHTS . . . . . . . . . 80
Section 1313. ARTICLE APPLICABLE TO PAYING AGENTS. . . . . . . . . . . . . . 80
Section 1314. DEFEASANCE OF THIS ARTICLE THIRTEEN. . . . . . . . . . . . . . 80
ARTICLE FOURTEEN
Conversion of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1401. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . 80
Section 1402. CONVERSION PRIVILEGE AND CONVERSION PRICE. . . . . . . . . . . 81
Section 1403. EXERCISE OF CONVERSION PRIVILEGE . . . . . . . . . . . . . . . 81
vi
Section 1404. FRACTIONS OF SHARES. . . . . . . . . . . . . . . . . . . . . . 82
Section 1405. ADJUSTMENT OF CONVERSION PRICE . . . . . . . . . . . . . . . . 82
Section 1406. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE. . . . . . . . . . . 86
Section 1407. NOTICE OF CERTAIN CORPORATE ACTION . . . . . . . . . . . . . . 86
Section 1408. COMPANY TO RESERVE COMMON SHARES . . . . . . . . . . . . . . . 87
Section 1409. TAXES ON CONVERSIONS . . . . . . . . . . . . . . . . . . . . . 87
Section 1410. COVENANT AS TO COMMON SHARES . . . . . . . . . . . . . . . . . 88
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . 89
Section 1501. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. . . . . . . . . . . . . . 89
Section 1502. DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . . . . 89
Section 1503. COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . 90
Section 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. . . . . . . . 90
Section 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . . . . . . . . 92
Section 1506. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 1507. QUALIFYING INDENTURE TRUSTEE . . . . . . . . . . . . . . . . . 93
ARTICLE SIXTEEN
Immunity of Organizers, Promoters, Shareholders, Officers, Trustees and
Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 1601. EXEMPTION FROM INDIVIDUAL LIABILITY. . . . . . . . . . . . . . 93
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
vii
INDENTURE, dated as of _________ __, ______, between Prime
Group Realty Trust, a real estate investment trust duly organized and
existing under the laws of the State of Maryland (herein called the
"COMPANY"), having its principal office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Bankers Trust Company, a New York banking
corporation, as Indenture Trustee (herein called the "INDENTURE TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
subordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "SECURITIES"), to be issued in one or more series as
provided in this Indenture.
The Company has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities.
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 each series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
1
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation in the
United States of America; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT", when used with respect to any Holder, has the meaning
specified in SECTION 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or other ownership interests,
by contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the
Indenture Trustee pursuant to SECTION 616 to act on behalf of the Indenture
Trustee to authenticate Securities of one or more series.
"BOARD OF TRUSTEES" means either the board of trustees of the
Company or any duly authorized committee of that board.
"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 Trustees and to be in full force and effect on the date of such
certification, and delivered to the Indenture Trustee.
"BOOK-ENTRY SECURITY" means a Security in the form prescribed in
SECTION 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"BUSINESS DAY", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or the city in which the
principal corporate trust office of the Trustee is located are authorized or
obligated by law or executive order to close.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
2
"COMMON SHARES" means any class of shares of beneficial interest
of the Company which has no preference in respect of dividends or distributions
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption
by the Company. However, subject to the provisions of SECTION 1411, shares
issuable on conversion of Securities shall include only shares of the class
designated as Common Shares of the Company at the date of this instrument or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or distributions or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; PROVIDED, that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Indenture Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be principally administered, which office at the date of original
execution of this Indenture is located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust and Agency Group or at any other time at such
other address as the Indenture Trustee may designate from time to time by notice
to the Holders, except that, with respect to presentation of the Securities for
payment or registration of transfers or exchanges and the location of the
register, such term means the office or agency of the Indenture Trustee at which
at any particular time its corporate agency business shall be conducted.
"DEFAULTED INTEREST" has the meaning specified in SECTION 307.
"DEFINITIVE SECURITY" means Securities that are in the form of
the Securities set forth in ARTICLE TWO, that do not include the information
called for by SECTION 204.
"DEPOSITARY" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depositary for such series by
the Company pursuant to SECTION 301(n), which Person shall be a clearing
agency registered under the Exchange Act; and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of
any series shall mean the Depositary with respect to the Securities of such
series.
3
EVENT OF DEFAULT" has the meaning specified in SECTION 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" means any registered exchange offer made by the
Company solely to facilitate the exchange of an Outstanding series of Securities
for the related Exchange Securities.
"EXCHANGE SECURITIES" means any Securities issued by the Company
solely to facilitate a registered exchange of such Securities for any series of
Securities with substantially identical terms previously issued in a private
placement of such Outstanding Securities.
"EXPIRATION TIME" has the meaning specified in SECTION 1405(6).
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by SECTION 301.
"INDENTURE TRUSTEE" means the Person named as the "Indenture
Trustee" in the first paragraph of this instrument until a successor Indenture
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Indenture Trustee" shall mean or include each Person
who is then a Indenture Trustee hereunder, and if at any time there is more than
one such Person, "Indenture Trustee" as used with respect to the Securities of
any series shall mean the Indenture Trustee with respect to Securities of that
series.
"INDEXED SECURITY" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or
4
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Indenture Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, in form
and substance reasonably acceptable to the Indenture Trustee, who may be counsel
for the Company, and who shall be acceptable to the Indenture Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
SECTION 502.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; PROVIDED, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to SECTION 1104
or provision therefor satisfactory to the Indenture Trustee has been made;
(iii) Securities, except to the extent provided in SECTIONS 1502
and 1503, with respect to which the Company has effected defeasance or covenant
defeasance as provided in ARTICLE FIFTEEN; and
(iv) Securities which have been paid pursuant to SECTION 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Indenture Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount
5
Security that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to SECTION
502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by SECTION 301 on the date
of original issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent on
the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
SECTION 301, and (iv) except for the purpose of making the calculations
required by Section 313 of the Trust Indenture Act, Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a
Responsible Officer of the Indenture Trustee actually knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by SECTIONS 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under SECTION 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"PURCHASED SHARES" has the meaning specified in SECTION 1405.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
6
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by SECTION 301.
"RESPONSIBLE OFFICER" shall mean when used with respect to the
Indenture Trustee any officer within the Corporate Trust Office including any
Vice President, managing director, assistant vice president, secretary,
assistant secretary, treasurer or assistant treasurer or any other officer of
the Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES PAYMENT" has the meaning specified in SECTION 1302.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in SECTION 305.
"SENIOR DEBT" means, without duplication, the principal,
premium (if any) and unpaid interest on all present and future (i)
indebtedness of the Company for borrowed money, (ii) obligations of the
Company evidenced by credit agreements, loan agreements, bonds, debentures,
notes or similar instruments, (iii) indebtedness incurred, assumed or
guaranteed by the Company in connection with the acquisition by it or a
Subsidiary of any business, properties or assets (including, without
limitation, the acquisition of leasehold interests, (iv) obligations of the
Company as lessee under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting principles, (v) all
indebtedness of the Company under interest rate and currency swaps, caps,
floors, collars, hedge agreements, forward contracts or similar agreements
and arrangements, (vi) reimbursement obligations of the Company in respect of
letters of credit relating to indebtedness or other obligations of the
Company that qualify as indebtedness or obligations of the kind referred to
in clauses (i) through (v) above, (vii) obligations of the Company under
direct or indirect guarantees in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (vi) above and (viii) renewals,
extensions, modifications, replacements, restatements and refundings of, or
any indebtedness or obligations issued in exchange for, any such indebtedness
or obligations described in clauses (i) through (vii) above and in this
clause (viii), in each case unless in the instrument creating or evidencing
the indebtedness or obligations or pursuant to which the same is outstanding
it is provided that such indebtedness or
7
obligations are not superior in right of payment to the Securities.
Notwithstanding the foregoing, Senior Debt shall not include indebtedness of
the Company for trade payables.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Indenture Trustee pursuant to SECTION 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"SUBSIDIARY" means any corporation, partnership or limited
liability company of which at least a majority of the outstanding voting stock,
partnership interest or limited liability company interest, as the case may be,
is at the time directly or indirectly owned by the Company, or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries. For
purposes of this definition, "voting stock" means stock having by the terms
thereof ordinary voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency)
"TRADING DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"TRANSFER RESTRICTED SECURITIES" means Securities that have been
or are required to bear the legend set forth in SECTION 305(h) hereof.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED, HOWEVER,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning specified in
SECTION 1504(1).
"VICE PRESIDENT", when used with respect to the Company or the
Indenture Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president,"
including, without limitation, "executive vice president" and "senior vice
president."
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Indenture
Trustee to take any action under any provision of this Indenture (except for the
initial issuances of Securities hereunder), the Company shall furnish to the
Indenture Trustee such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an
8
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth
in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
representations by counsel or an opinion of counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate,
representations or opinion with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate or
representations of counsel or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
9
Section 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Indenture Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "ACT" of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to SECTION
603) conclusive in favor of the Indenture Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the Company
prior to the first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to SECTION 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date for action to be taken by
the Holders of one or more series of Securities, only the Holders of Securities
of such series on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
10
Section 105. NOTICES, ETC., TO INDENTURE TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Indenture Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Agency Services.
(2) the Company by the Indenture Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Indenture Trustee by the Company, Attention:
President, with a copy to the Company at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company, Attention:
General Counsel.
Section 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Indenture Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Indenture
Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the provision of the
Trust Indenture Act shall control. If any provision of this Indenture
modifies or
11
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. 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 REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such day, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity; PROVIDED, that no interest shall accrue for the intervening period.
12
ARTICLE TWO
Security Forms
Section 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by, or by action taken pursuant to, a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Indenture Trustee at or
prior to the delivery of the Company Order contemplated by SECTION 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. FORM OF FACE OF SECURITY.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
[INSERT ANY LEGEND REQUIRED BY THE DEPOSITARY, IF APPLICABLE.]
PRIME GROUP REALTY TRUST
[INSERT DESIGNATION OF THE SERIES OF SECURITY.]
No.________ $__________
CUSIP No. _______________________
Prime Group Realty Trust, a real estate investment trust
[duly organized and existing] under the laws of Maryland (herein called the
"COMPANY", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum [IF BOOK-ENTRY
SECURITY, INSERT -- set forth above or such other principal sum on the Schedule
attached hereto (which shall not exceed $____)] [of _________________ Dollars]
on ________________ [IF THE SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY,
INSERT, and to
13
pay interest thereon from __________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
_________ and ___________ in each year, commencing __________, at the rate of
_____% per annum, until the principal hereof is paid or made available for
payment [IF APPLICABLE, INSERT -- and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of _______% per annum on any
overdue principal and premium and on any overdue installment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ________ or _________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Indenture
Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY,
INSERT -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. [Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ____% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]]
Payment of the principal of (and premium, if any on) and
[IF APPLICABLE, INSERT -- and any such interest on] this Security will be made
at the office or agency of the Company maintained for that purpose in ________,
in such coin or currency of [the United States of America] as at the
time of payment is legal tender for payment of public and private debts [IF
APPLICABLE, INSERT --; PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer to an account maintained by the Person entitled thereto as
specified in the Security Register, PROVIDED that such Person shall have given
the Indenture Trustee written wire instructions at least five Business Days
prior to the applicable Interest Payment Date.]
[IF THE SECURITY IS PAYABLE IN A FOREIGN CURRENCY, INSERT -- the
appropriate provision.]
14
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
PRIME GROUP REALTY TRUST
By
------------------------------------
Title:
Attest:
----------------------------
Title:
Section 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "SECURITIES"), issued and to be issued in one or
more series under an Indenture, dated as of __________, _____ (herein, together
with all indentures supplemental thereto, called the "INDENTURE"), between the
Company and [____________________], as Indenture Trustee (herein called the
"INDENTURE TRUSTEE", which term includes any successor indenture trustee under
the Indenture). [This Security is one of a series [, limited in aggregate
principal amount to $ ] designated as [__________] (herein called
"[__________]"), [created by a supplemental indenture, dated as of _____________
(the "SUPPLEMENTAL INDENTURE"), duly executed and delivered by the Company to
such Indenture Trustee.] Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Indenture Trustee, the holders of Senior Debt and
the Holders of the Securities (including the Holders of the [__________]) and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
[IF APPLICABLE, INSERT -- The Securities are redeemable, as a
whole or in part, at the option of the Company, at any time or from time to
time, on at least 30 days, but not more than 60 days, prior notice mailed to the
registered address of each holder of Securities. The redemption prices will be
equal to the greater of (1) 100% of the principal amount of the Securities to be
redeemed or (2) the sum of the present values of the Remaining Scheduled
Payments (as defined
15
below) discounted, on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months), at a rate equal to the sum of the applicable
Treasury Rate (as defined below) plus __ basis points, plus accrued interest
to the date of redemption.
"TREASURY RATE" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity (computed as
of the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"COMPARABLE TREASURY ISSUE" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of such series of Securities to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of such series of Securities.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury Dealers
appointed by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any redemption
date, the average of the Reference Treasury Dealer Quotations for such
redemption date. "REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m.,
New York City time, on the third business day preceding such redemption date.
"REFERENCE TREASURY DEALER" means each of ___________ and
__________ and their respective successors. If any of the foregoing shall cease
to be a primary U.S. Government securities dealer (a "Primary Treasury Dealer"),
the Company shall substitute another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
"REMAINING SCHEDULED PAYMENTS" means, with respect to Securities
to be redeemed, the remaining scheduled payments of principal of and interest on
such Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Securities, the amount of the next succeeding scheduled interest payment
on such Securities will be reduced by the amount of interest accrued on such
Securities to such redemption date.
On and after the redemption date, interest will cease to accrue
on the Securities or any portion of the Securities called for redemption (unless
the Company defaults in the payment of the redemption price and accrued
interest). On or before the redemption date, the Company will deposit with a
paying agent (or the Indenture Trustee) money sufficient to pay the redemption
price of and accrued interest on the Securities to be redeemed on such date. If
less than all of the Securities of any series are to be redeemed, the Securities
to be redeemed shall be selected by the Indenture Trustee by such method as the
Indenture Trustee shall deem fair and appropriate.]
16
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, [IF APPLICABLE, INSERT -- (1) on _________ in any year commencing
with the year _________ and ending with the year _________ through operation of
the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after _______________, _________],
as a whole or in part, at the election of the Company, [at Redemption Prices
determined as follows:] [at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before _________%,
and if redeemed] during the 12-month period beginning _________ of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ______% of the principal amount,]
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates [or Special Record Dates] referred to on the face
hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, (1) on _________ in any year commencing with the year _________ and
ending with the year _________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _____________], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ______________ of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
17
and thereafter at a Redemption Price equal to _________% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
_________ redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _________% per annum.]
[The sinking fund for this series provides for the redemption on
_________ in each year beginning with the year _________ and ending with the
year of _________ [not less than $_________ ("mandatory sinking fund") and not
more than] $_________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[IF THE SECURITIES DO NOT HAVE A SINKING FUND, THEN INSERT --
the Securities do not have the benefit of any sinking fund obligations.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Indenture Trustee on his behalf to
take such action as may be necessary or appropriate to effect the subordination
so provided and (c) appoints the Indenture Trustee his attorney-in-fact for any
and all such purposes.
[IF THE SECURITY IS SUBJECT TO REDEMPTION, INSERT -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT SUBJECT TO REDEMPTION, INSERT -- The
Securities of this series are not redeemable prior to Stated Maturity.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [and/or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
18
[IF APPLICABLE, INSERT -- The Securities of this series are not
subject to [Section 1502 of the Indenture concerning the defeasance of the
indebtedness represented by this Security] [and/or] [Section 1503 of the
Indenture concerning covenant defeasance of this Security.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT
-- If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[IF THE SECURITY IS AN INDEXED SECURITY, INSERT -- the
appropriate provision.]
[IF THE SECURITY IS CONVERTIBLE, INSERT -- Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at its option, at any time on or after the opening of business on
__________, _____ and on or before the close of business on __________, or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the Redemption Date, to convert this Security (or any portion of
the principal amount hereof which is $ __________or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and nonassessable shares (calculated as to each conversion to the nearest 1/100
of a share) of [Common Shares] [Preferred Shares] of the Company at a conversion
price equal to $_________ aggregate principal amount of Securities for each
[Common Share] [Preferred Share] (or at the current adjusted conversion price if
an adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency in ______________________, accompanied by a completed
and signed "Form of Election to Convert" below, which will constitute written
notice to the Company that the Holder hereof elects to convert this Security, of
if less than the entire principal amount hereof is to be converted, the portion
hereof to be converted, and, in case such surrender shall be made during the
period from the close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
(unless this Security or the portion hereof being converted has been called for
redemption on a Redemption Date within such period), also accompanied by payment
in immediately available funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the aforesaid
requirement for payment and, in the case of a conversion after the Regular
Record Date next preceding any Interest Payment Date and
19
on or before such Interest Payment Date, to the right of the Holder of this
Security (or any Predecessor Security) of record at such Regular Record Date
to receive an installment of interest (with certain exceptions provided in
the Indenture), no payment or adjustment is to be made on conversion for
interest accrued hereon or for dividends on the Common Shares issued on
conversion. No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the Indenture. The
conversion price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the transfer of substantially all
of the assets of the Company, the Indenture shall be amended, without the
consent of any Holders of Securities, so that this Security, if then
outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the consolidation, merger
or transfer by a holder of the number of [Common Shares] [Preferred Shares]
into which this Security might have been converted immediately prior to such
consolidation, merger or transfer (assuming such holder of [Common Shares]
[Preferred Shares] failed to exercise any rights of election and received per
share the kind and amount received per share by a plurality of non-electing
shares), assuming, if such consolidation, merger or transfer is prior to
[insert date upon which the Securities first become convertible], that this
Security was convertible at the time of such consolidation, merger or
transfer at the initial conversion price specified above as adjusted from
[date of issuance], to such time pursuant to the Indenture.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Indenture Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be adversely affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly
20
executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $___________ [and any integral multiple
thereof]. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer, trustee or employee, as such, past, present or future,
of the Company or any successor entity, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
Prior to due presentment of this Security for registration of
transfer, the Company, the Indenture Trustee and any agent of the Company or
the Indenture Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes (subject to Section 307 of
the Indenture), whether or not this Security be overdue, and neither the
Company, the Indenture Trustee nor any such agent shall be affected by notice
to the contrary.
[IF APPLICABLE, INSERT -- Interest on this Security shall be
computed on the basis of a 360-day year of twelve 30-day months.]
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. The
Indenture and this Security shall be governed by and construed in accordance
with the laws of the State of New York without regard to the conflicts of
laws principles thereof.
ABBREVIATIONS
The following abbreviations, when used in the inscription of
the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
21
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the ______________________ Custodian
entireties (Cust)
______________________ under
JT TEN - as joint tenants with (Minor)
right of survivorship and
not as tenants in common Uniform Gifts to
Minors Act__________________
(State)
Additional abbreviations may also be used
though not in the above list.
[IF THE SECURITY IS CONVERTIBLE, INSERT - -
FORM OF ELECTION TO CONVERT
I(we) hereby irrevocably exercise the option to convert this
Security, or the principal portion below designated, into [Common Shares]
[Preferred Shares] in accordance with the terms of the Indenture referred to
in this Security, and direct that the shares issuable and deliverable upon
conversion, together with any check in payment for fractional shares, be
issued in the name of and delivered to the undersigned registered Holder
hereof and any Security representing any unconverted principal amount hereof,
unless a different name has been indicated below. If shares and/or any
Security representing any unconverted principal amount hereof are to be
issued in the name of a Person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto.
Portion of this Security
to be converted (if partial
conversion, $1,000 or an
integral multiple thereof): $________
Signature: ____________________________________
(exactly as your name appears on the
face of this Security)
Name: _________________________________________
Title: ________________________________________
Address: ______________________________________
Phone No.: ____________________________________
22
Date: _________________________________________
If shares and/or any Security representing any unconverted principal amount
hereof, are to be issued and registered in the name of a Person other than
the undersigned, please print the name and address, including zip code, and
social security or other taxpayer identification number of such Person below.
Name: _________________________________
Address: ______________________________
TIN/Social Security No.: ______________
Signature Guaranteed (if [Common Shares] [Preferred Shares]
to be issued to other than the registered holder(s)):
By: _______________________________
This signature shall be guaranteed
by an eligible guarantor institution
(a bank or trust company having an
office or correspondent in the United
States or a broker or dealer which is
a member of a registered securities
exchange or the National Association
of Securities Dealers, Inc.) with
membership in an approved signature
guaranty medallion program pursuant
to SEC Rule 17 Ad-15.]
ASSIGNMENT FORM
(I) or (we) assign and transfer this Security to:
_______________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________ agent to transfer
this Security on the Register. The agent may substitute another to act for him.
Date: ______________
Signature: ____________________________________
23
(exactly as your name appears on the
face of this Security)
Name: _______________________________________
Title: ______________________________________
Address: ____________________________________
Phone No.: __________________________________
Date: _______________________________________
Signature Guaranteed:
By: _______________________________
This signature shall be guaranteed
by an eligible guarantor institution
(a bank or trust company having an
office or correspondent in the United
States or a broker or dealer which is
a member of a registered securities
exchange or the National Association
of Securities Dealers, Inc.) with
membership in an approved signature
guaranty medallion program pursuant
to SEC Rule 17 Ad-15.
24
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of Securities
held in *________ book-entry or *_______ definitive form by ________________
(the "Transferor").
The Transferor*:
/ / has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Book-Entry Security held by the
Depository a Security or Securities in definitive, registered form of
authorized denominations in an aggregate principal amount equal to its
beneficial interest in such Book-Entry Security (or the portion thereof
indicated above); or
/ / has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify and agree that Transferor is
familiar with the Indenture relating to the above captioned Securities and as
provided in Section 305 of such Indenture, the transfer of this Security does
not require registration under the Securities Act of 1933, as amended (the
"Securities Act") because:*
/ / Such Security is being acquired for the Transferor's
own account, without transfer (in satisfaction of
Section 305(b)(ii)(A) or Section 305(e)(i)(A) of the Indenture).
/ / Such Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act in
reliance on Rule 144A (in satisfaction of Section 305(b)(ii)(B) or Section
305(e)(i)(B) of the Indenture) or pursuant to an exemption from registration
in accordance with Rule 904 under the Securities Act (in satisfaction of
Section 305(b)(ii)(B) or Section 305(e)(i)(B) of the Indenture.)
/ / Such Security is being transferred in accordance with Rule 144
under the Securities Act, or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 305(b)(ii)(B) or Section
305(e)(i)(B) of the Indenture).
/ / Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A, 144 or Rule 904 under the Securities
Act, and any applicable state securities laws. An Opinion of Counsel to the
effect that such transfer does not require registration under the Securities
Act accompanies this Certificate (in satisfaction of Section 305(b)(ii)(C) or
Section 305(e)(i)(C) of the Indenture).
_______________________
[INSERT NAME OF TRANSFEROR]
25
Dated: ______________ By:___________________
*Check applicable box.
Section 204. ADDITIONAL PROVISIONS REQUIRED IN BOOK-ENTRY SECURITY.
Any Book-Entry Security issued hereunder shall, in addition to
the provisions contained in SECTIONS 202 and 203 and in addition to any
legend required by the Depositary, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities registered in the name of a Person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture and
may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary."
Section 205. FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Indenture 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.
Dated: ______________
Bankers Trust Company,
As Indenture Trustee
By ___________________________________
[Authorized Signatory]
26
ARTICLE THREE
The Securities
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and,
subject to SECTION 303, set forth, or determined in the manner provided, in
an Officers' Certificate, 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 Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to SECTIONS 304, 305, 306, 906 or 1107 and
except for any Securities which, pursuant to SECTION 303, are deemed never to
have been authenticated and delivered hereunder);
(3) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall
be issuable;
(4) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(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;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or rates
of interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date
for any interest payable on any Interest Payment Date;
(7) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and the
duration of such extensions;
27
(8) if other than the Corporate Trust Office of the
Indenture Trustee, the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(9) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United States
of America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in SECTION 101;
(10) the period or periods within which, the price or prices
at which, the currency or currencies (including currency units) in which and
the other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(11) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or
a Holder thereof, in one or more currencies or currency units other than that
or those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the other terms
and conditions upon which such election is to be made;
(12) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to SECTION
502 or the method by which such portion shall be determined;
(13) the obligation, if any, of the Company to redeem or
purchase 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 (or
the methods of determination of such a period or periods) within which, the
price or prices at which and the other terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(14) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference
to an index, formula or other method, the index, formula or other method by
which such amounts shall be determined;
(15) if the amount Outstanding of an Indexed Security for
purposes of the definition of "Outstanding" is to be other than the principal
face amount at original issuance, the method of determination of such amount;
(16) if either or both of SECTION 1502 or 1503 does not apply
to the Securities of any series;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities and, in
such case, the Depositary with respect to such
28
Book-Entry Security or Securities and the circumstances under which any
Book-Entry Security may be registered for transfer or exchange, or
authenticated and delivered, in the name of a Person other than such
Depositary or its nominee, if other than as set forth in SECTION 305;
(18) any additional, modified or different covenants or
Events of Default applicable to one or more particular series of Securities;
(19) the application, if any, of ARTICLE FOURTEEN to the
Securities of any Series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
SECTION 901(5)).
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 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such series.
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 such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Indenture Trustee at or prior to the delivery of
the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the series.
Section 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by SECTION 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series shall
be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Financial Officer or one of its Vice Presidents. The signature of any
of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
29
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 Indenture Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities,
and the Indenture Trustee in accordance with the Company Order shall
authenticate and deliver or make available for delivery such Securities;
PROVIDED, HOWEVER, that in the case of Securities of a series that are not to
be originally issued at one time, the Indenture Trustee shall authenticate
and deliver or make available for delivery such Securities from time to time
in accordance with such other procedures (including, without limitation, the
receipt by the Indenture Trustee of oral or electronic instructions from the
Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Indenture Trustee as may be specified by or pursuant to a
Company Order delivered to the Indenture Trustee prior to the time of the
first authentication of Securities of such series. In authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Indenture Trustee shall be
entitled to receive, and (subject to SECTION 601) shall be fully protected in
relying upon
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities have been
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been, or in the
case of Securities of a series that are not to be originally issued at one
time, will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series that are not to be
originally issued at one time, to any conditions specified in such Opinion of
Counsel;
(c) that such Securities, when authenticated and delivered
by the Indenture Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; PROVIDED,
that such Opinion of Counsel need express no opinion as to whether a court in
the United States would render a money judgment in currency other than that
of the United States; and
(ii) an Officer's Certificate stating that all conditions precedent
provided for in this Indenture relating to the execution, authentication and
delivery of the Securities have been complied with.
If such form or forms or terms have been so established, the Indenture
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the Indenture
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which the Indenture Trustee determines
would expose it to personal liability.
30
Notwithstanding the provisions of SECTION 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to SECTION 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents, with appropriate modifications to cover such future
issuances, are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to SECTION 301 that
the Securities of a series are to be issued in whole or in part in the form
of one or more Book-Entry Securities, then the Company shall execute and the
Indenture Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver or make available
for delivery one or more Securities in such form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by such
Book-Entry Security or Securities, (ii) shall be registered in the name of
the Depositary for such Book-Entry Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Indenture Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear
the legend set forth in SECTION 204.
Unless otherwise established pursuant to SECTION 301, each
Depositary designated pursuant to SECTION 301 for a Book-Entry Security must,
at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and any
other applicable statute or regulation. The Indenture Trustee shall have no
responsibility to determine if the Depositary is so registered. Each
Depositary shall enter into an agreement with the Indenture Trustee governing
the respective duties and rights of such Depositary and the Indenture Trustee
with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Indenture Trustee by manual signature of
an authorized officer thereof, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing,
if any Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such
Security to the Indenture Trustee for cancellation as provided in SECTION
309, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
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Section 304. TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities of any
series, the Company may execute, and upon Company Order the Indenture Trustee
shall authenticate and deliver or make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause Definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of Definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
Definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the
Company shall execute and the Indenture Trustee shall authenticate and
deliver or make available for delivery in exchange therefor one or more
Definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities of such series
and tenor.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE;
RESTRICTIONS ON TRANSFER.
(a) General Provisions Relating to Transfers and Exchanges.
(i) The Company shall cause to be kept at the Corporate
Trust Office of the Indenture Trustee a register (the register maintained in
such office and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively referred to as the "SECURITY
REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Indenture Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers
and exchanges of Securities as herein provided.
To permit registrations, transfers and exchanges of
Securities, the Company shall execute and the Trustee shall authenticate
Definitive Securities and Book-Entry Securities at the Security Registrar's
request. Notwithstanding anything herein to the contrary, there shall be only
one Security Register with respect to each series of Securities.
(ii) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to SECTIONS 304, 906 or 1107 not
involving any transfer.
32
(iii) Notwithstanding any other provision in this Indenture,
unless and until it is exchanged in whole or in part for Securities that are
not in the form of a Book-Entry Security, a Book-Entry Security may not be
transferred or exchanged except as a whole by the Depositary with respect to
such Book-Entry Security to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary.
(iv) All Definitive Securities and Book-Entry Securities
issued upon any registration of transfer or exchange of Definitive Securities
or Book-Entry Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Book-Entry Securities surrendered
upon such registration of transfer or exchange.
(v) The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing of
a notice of redemption of Securities of that series selected for redemption
under SECTION 1103 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
(vi) Upon surrender for registration of transfer of any
Security of any series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Indenture Trustee
shall authenticate and deliver or make available for delivery, in the name of
the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
(vii) At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Indenture Trustee shall authenticate and deliver or make
available for delivery, the Securities which the Holder making the exchange
is entitled to receive.
(viii) Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the
Security Registrar or the Indenture Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Security Registrar and the Indenture Trustee duly executed by
the Holder thereof or his attorney duly authorized in writing.
(ix) Notwithstanding the foregoing, any Book-Entry Security
shall be exchangeable pursuant to this SECTION 305 for Securities registered
in the names of Persons other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Book-Entry Security or if at any
time such Depositary ceases to be a clearing agency registered under the
Exchange Act and the Company does not appoint a successor Depositary within
90 days after receipt by it of such notice or after it
33
becomes aware of such cessation, (ii) the Company executes and delivers to
the Indenture Trustee a Company Order that such Book-Entry Security shall be
so exchangeable or (iii) there shall have occurred and be continuing an Event
of Default with respect to the Securities. Any Book-Entry Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
(x) None of the Company, the Indenture Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Book-Entry Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
(b) Transfer and Exchange of Securities.
When Definitive Securities are presented by a Holder to the
Security Registrar with a request: (x) to register the transfer of the
Definitive Securities; or (y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of other authorized
denominations, the Security Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met;
provided, however, that the Definitive Securities presented or surrendered
for register of transfer or exchange: (i) shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by his attorney, duly
authorized in writing; and (ii) in the case of a Definitive Security that is
a Transfer Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable: (A) if such
Transfer Restricted Security is being delivered to the Security Registrar by
a Holder for registration in the name of such Holder, without transfer, a
certification to that effect from such Holder (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in SECTION 203); or (B) if such Transfer Restricted
Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance with Rule 144A
under the Securities Act or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 under the Securities Act or pursuant to
an effective registration statement under the Securities Act, a certification
to that effect from such Holder (in substantially the form of the
"Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in SECTION 203) or (C) if such Transfer Restricted
Security is being transferred in reliance on another exemption from the
registration requirements of the Securities Act or the securities laws of any
other applicable jurisdiction, a certification to that effect from such
Holder (in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in SECTION 203)
and an Opinion of Counsel from such Holder or the transferee reasonably
acceptable to the Company and to the Security Registrar to the effect that
such transfer is in compliance with the Securities Act.
(c) Transfer of a Definitive Security for a Beneficial
Interest in a Book-Entry Security.
34
A Definitive Security may not be exchanged for a beneficial
interest in a Book-Entry Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with: (i) if such
Definitive Security is a Transfer Restricted Security, a certification from
the Holder thereof (in substantially the form of the "Certificate to be
Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in SECTION 203) to the effect that such Definitive Security is being
transferred by such Holder to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule 144A under the
Securities Act; and (ii) whether or not such Definitive Security is a
Transfer Restricted Security, written instructions from the Holder thereof
directing the Trustee to make, or to direct the Security Custodian to make,
an endorsement on the Book-Entry Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Book-Entry
Security, in which case the Trustee shall cancel such Definitive Security in
accordance with SECTION 309 and cause, or direct the Security Custodian to
cause, in accordance with the standing instructions and procedures existing
between the Depository and the Security Custodian, the aggregate principal
amount of Securities represented by the Book-Entry Security to be increased
accordingly. If no Book-Entry Securities are then outstanding, the Company
shall issue and, upon receipt of a Company Order in accordance with SECTION
303, the Trustee shall authenticate a new Book-Entry Security in the
appropriate principal amount.
(d) Transfer and Exchange of Book-Entry Securities.
The transfer and exchange of Book-Entry Securities or
beneficial interests therein shall be effected through the Depository, in
accordance with this Indenture and the procedures of the Depository therefor,
which shall include restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act.
(e) Transfer of a Beneficial Interest in a Book-Entry
Security for a Definitive Security.
(i) Any Person having a beneficial interest in a Book-Entry
Security may upon request exchange such beneficial interest for a Definitive
Security. Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depository, from the Depository
or its nominee on behalf of any Person having a beneficial interest in a
Book-Entry Security, and, in the case of a Transfer Restricted Security, the
following additional information and documents (all of which may be submitted
by facsimile): (A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification to that effect from such Person (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in SECTION 203) or (B) if such beneficial interest is
being transferred to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration in accordance
with Rule 144 or Rule 904 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a certification to
that effect from the transferor (in substantially the form of "Certificate to
be Delivered Upon Exchange or Registration
35
of Transfer of Securities" set forth in SECTION 203) or (C) if such
beneficial interest is being transferred in reliance on another exemption
from the registration requirements of the Securities Act or the securities
laws of any other applicable jurisdiction, a certification to that effect
from the transferor (in substantially the form of the "Certificate to be
Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in SECTION 203) and an Opinion of Counsel from the transferee or transferor
reasonably acceptable to the Company and to the Security Registrar to the
effect that such transfer is in compliance with the Securities Act, in which
case the Trustee or the Security Custodian, at the direction of the Trustee,
shall, in accordance with the standing instructions and procedures existing
between the Depository and the Security Custodian, cause the aggregate
principal amount of Book-Entry Securities to be reduced accordingly and,
following such reduction, the Company shall execute and, upon receipt of a
Company Order in accordance with SECTION 303, the Trustee shall authenticate
and deliver to the transferee a Definitive Security in the appropriate
principal amount.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Book-Entry Security pursuant to this SECTION 305(e)
shall be registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Definitive Securities to the Persons in whose names such Securities are so
registered.
(f) Restrictions on Transfer and Exchange of Book-Entry
Securities.
Notwithstanding any other provision of this Indenture (other
than the provisions set forth in subsection (g) of this SECTION 305), a
Book-Entry Security may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such successor
Depository.
(g) Authentication of Securities in Absence of Depository.
If at any time: (i) the Depository for the Securities notifies
the Company that the Depository is unwilling or unable to continue as
Depository for the Book-Entry Securities and a successor Depository for the
Book-Entry Securities is not appointed by the Company within 90 days after
delivery of such notice; or (ii) the Company, at its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
Definitive Securities under this Indenture, then the Company shall execute,
and the Trustee shall, upon receipt of a Company Order in accordance with
SECTION 303, authenticate and deliver, Definitive Securities in an aggregate
principal amount equal to the principal amount of the Book-Entry Securities
in exchange for such Book-Entry Securities.
(h) Legends and Authentication of Securities under Specified
Circumstances.
(i) Except as permitted by the following paragraphs (iii)
and (iv), each Security certificate evidencing Book-Entry Securities and
Definitive Securities (and all Securities issued in
36
exchange therefor or substitution thereof) issued other than pursuant to
Regulation S shall bear a legend in substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (3) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (4) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES."
(ii) Except as permitted by the following paragraphs (iii)
and (iv), each Security certificate evidencing Book-Entry Securities and
Definitive Securities (and all Securities issued in exchange therefor or
substitution thereof) issued pursuant to Regulation S shall bear a legend in
substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
PRIOR TO THE EXPIRATION OF A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS 40
DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE [NOTES] [DEBENTURES]), MAY NOT
BE: OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
REGULATION S OR (2) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THIS [NOTE]
[DEBENTURE] A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES."
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Book-Entry Security) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities Act: (A)
in the
37
case of any Transfer Restricted Security that is a Definitive Security, the
Security Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not bear the legend
set forth in (i) OR (ii) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and (B) in the case of any Transfer
Restricted Security represented by a Book-Entry Security, such Transfer
Restricted Security shall not be required to bear the legend set forth in (i)
or (ii) above, but shall continue to be subject to the provisions of SECTION
305(e); PROVIDED, HOWEVER, that with respect to any request for an exchange
of a Transfer Restricted Security that is represented by a Book-Entry
Security for a Definitive Security that does not bear the legend set forth in
(i) or (ii) above, which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Security Registrar that such
request is being made pursuant to Rule 144 (such certification to be
substantially in the form of the "Certificate to be Delivered Upon Exchange
or Registration of Transfer of Securities" set forth in SECTION 203).
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of a Company Order
in accordance with SECTION 303, the Trustee shall authenticate Exchange
Securities in exchange for Offered Securities accepted for exchange in the
Exchange Offer, which Exchange Securities shall not bear the legend set forth
in (i) or (ii) above, and the Security Registrar shall rescind any
restriction on the transfer of such Securities, in each case unless the
Holder of such Offered Securities is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Offered Securities or (C) a Person
who is an affiliate (as defined in Rule 144A) of the Company.
(v) The letter required to be provided pursuant to
paragraphs (i) and (ii) above shall be substantially in the form of EXHIBIT
305(h)(v) hereto.
(i) Cancellation and/or Adjustment of Book-Entry Securities.
At such time as all beneficial interests in Book-Entry
Securities have been exchanged for Definitive Securities, redeemed,
repurchased or canceled, all Book-Entry Securities shall be returned to or
retained and canceled by the Trustee in accordance with SECTION 309. At any
time prior to such cancellation, if any beneficial interest in a Book-Entry
Security is exchanged for Definitive Securities, redeemed, repurchased or
canceled, the Trustee or the Security Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depository and the Security Custodian, cause the
aggregate amount of Book-Entry Securities to be reduced accordingly.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Indenture
Trustee, the Company shall execute and the Indenture Trustee shall
authenticate and deliver or make available for delivery in exchange therefor
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
38
If there shall be delivered to the Company and the Indenture
Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Indenture Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and the Indenture Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security, other than a Security having the benefit of conversion privileges
pursuant to Article Fourteen, has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by SECTION 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to SECTION 1002; PROVIDED, HOWEVER, that at the option of
the Company, interest on Securities of any series that bear interest may be
paid (i) by check mailed to the address of the Person entitled thereto as it
shall appear on the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security
Register; PROVIDED, that such Person shall have given the Indenture Trustee
written wire instructions at least five Business Days prior to the applicable
Interest Payment Date.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall
39
forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Clauses (1)
or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Indenture Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Indenture
Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Indenture Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be in immediately available funds and
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Indenture Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Indenture Trustee of the notice of the proposed payment (it being understood
that the date of the proposed payment shall be delayed, as necessary, by that
numbers of days that are required to allow for the minimum number of days
(i.e., 10 days) between the Special Record Date and the date of payment, and
that the Trustee will provide the Company with prompt written notice of any
such required delay after the Trustee's receipt of the Company's notice of
the proposed payment). The Indenture Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at his address
as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Indenture Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Indenture Trustee.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly
provided for) shall be paid to the Person in whose
40
name that Security (or one or more Predecessor Securities) is registered at
the close of business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security which is converted, interest whose Stated Maturity is after the date
of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Indenture Trustee and any agent of the Company or
the Indenture Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of and any premium and (subject to SECTION 307) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Indenture Trustee nor any
agent of the Company or the Indenture Trustee shall be affected by notice to
the contrary.
None of the Company, the Indenture Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of any Book-Entry Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. CANCELLATION.
All Securities surrendered for payment, redemption,
conversion, repurchase, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee. All
Securities so delivered and any Securities surrendered directly to the
Indenture Trustee for any such purpose shall be promptly canceled by the
Indenture Trustee and such cancellation shall be noted conspicuously on each
such Security. The Company may at any time deliver to the Indenture Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Indenture Trustee (or to any other Person for delivery to
the Indenture Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Indenture Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Indenture
Trustee shall be disposed of as directed by a Company Order or after 90 days,
if not in receipt of such Company Order, shall be disposed of in accordance
with the Indenture Trustee's customary procedures.
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Section 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by SECTION 301
for Securities of any series, (i) interest on the Securities of each series
which bear interest at a fixed rate shall be computed on the basis of a
360-day year of twelve 30-day months and (ii) interest on the Securities of
each series which bear interest at a variable rate shall be computed on a
basis of the actual number of days in an interest period divided by 360.
Section 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Indenture Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders;
PROVIDED, that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such CUSIP
numbers. The Company will promptly notify the Indenture Trustee in writing
of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer, substitution, exchange,
replacement and conversion of such Securities herein expressly provided for),
and the Indenture Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Securities, including, but not limited to, ARTICLE
THIRTEEN hereof, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in SECTION 306 and
(ii) such Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in SECTION 1003)
have been delivered to the Indenture Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Indenture Trustee for cancellation
42
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year,
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Company, or
(iv) are delivered to the Trustee for conversion in
accordance with Article Fourteen.
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or
caused to be deposited with the Indenture Trustee as trust funds in trust for
the purpose of payment and discharge an amount in the currency or currencies
or currency unit or units in which such Securities are payable sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Indenture Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such Securities have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, (i) the obligations of the Company to the Indenture Trustee under
SECTION 607 and to any Authenticating Agent under SECTION 616 and, if money
shall have been deposited with the Indenture Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Indenture Trustee
under SECTION 402, ARTICLE SIX and the last paragraph of SECTION 1003 shall
survive and (ii) to the extent conversion privileges under Article Fourteen
are applicable to the Securities of a series, the rights and obligations
under such Article Fourteen with respect to such series of Securities shall
survive until the earlier of the conversion of such Securities in accordance
with their terms or payment in full of the principal amount of such
Securities in accordance with their terms or payment in full of the principal
amount of such Securities and any interest or other amounts due thereon, upon
such Securities becoming due and payable in accordance with their terms.
43
Section 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of SECTION 1003,
all money deposited with the Indenture Trustee pursuant to SECTION 401 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Indenture Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has been
deposited with the Indenture Trustee.
ARTICLE FIVE
Events of Default and Remedies
Section 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body, unless it is inapplicable to a
particular series or is specifically deleted or modified in the Board
Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture under which such series of Securities is issued or has
been modified in an indenture supplemental hereto):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with respect to Securities of
that series (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Indenture
Trustee or to the Company and the Indenture Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series
(or, if any of the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
44
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of any
such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default
described in clause 5 or 6 of SECTION 501) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Indenture Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Indenture Trustee if given by Holders),
and upon any such declaration such principal amount (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Indenture
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series (or, if any of
the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal
45
amount of such Securities as may be specified in the terms thereof), by
written notice to the Company and the Indenture Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Indenture
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in SECTION 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 5 or 6 of SECTION
501 occurs, the Outstanding Securities shall ipso facto become immediately
due and payable without need of any declaration or other act on the part of
the Indenture Trustee or any Holder.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Indenture Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any
46
premium and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and premium and on
any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Indenture Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Indenture Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 504. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Indenture Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Indenture
Trustee allowed in any such proceeding. In particular, the Indenture Trustee
shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments directly to the Indenture Trustee and, in the
event that the Indenture Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Indenture Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel, and any other amounts due the
Indenture Trustee under SECTION 607.
No provision of this Indenture shall be deemed to authorize
the Indenture 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 Indenture Trustee to vote in respect of the claim of any
Holder in any such proceeding; PROVIDED, HOWEVER, that the Indenture Trustee
may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and may be a member of a creditors' or other
similar committee.
Section 505. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Indenture Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses,
47
disbursements and advances of the Indenture Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Indenture Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed
by the Indenture Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Indenture
Trustee under SECTION 607;
SECOND: To holders of Senior Debt as provided for, and to the
extent required, in ARTICLE THIRTEEN;
THIRD: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest,
respectively; and
FOURTH: The balance, if any, to the Company.
The Indenture Trustee may fix a record date and payment date
for any payment to holders of Securities pursuant to this SECTION 506. At
least 15 days before such record date, the Company shall mail to each holder
of Securities and the Indenture Trustee a notice that states the record date,
the payment date and amount to be paid.
Section 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to
the Indenture Trustee to institute proceedings in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(3) such Holder or Holders have offered to the Indenture
Trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
48
(4) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Indenture Trustee before or during such 60-day period by
the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to SECTION 307) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Indenture Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, the Indenture Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of the Indenture Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of SECTION 306 and as otherwise provided in SECTION 507, no right
or remedy herein conferred upon or reserved to the Indenture Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Indenture Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Indenture Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient,
by the Indenture Trustee or by the Holders, as the case may be.
Section 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right, after notice and
request made to the Indenture Trustee pursuant to SECTION 105 hereof, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, with respect to the Securities of such
series; PROVIDED, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee which is not inconsistent with such
direction, and
(3) subject to the provisions of SECTION 601, the Indenture
Trustee shall have the right to decline to follow any such direction if the
Indenture Trustee in good faith shall, by a Responsible Officer or Officers
of the Indenture Trustee, determine that the proceeding so directed would
involve the Indenture Trustee in personal liability.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
ARTICLE NINE cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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Section 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of
such suit, and may assess costs, including counsel fees and expenses, against
any such party litigant, in the manner and to the extent provided in the
Trust Indenture Act; PROVIDED, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, the Indenture Trustee, a Holder of Securities pursuant to SECTION
508, or the Holders of more than 10% in aggregate principal amount of the
Outstanding Securities of any series.
ARTICLE SIX
The Indenture Trustee
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Indenture Trustee shall
be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Indenture Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section.
Section 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of
any series, the Indenture Trustee shall, to the extent a Responsible Officer
of the Indenture Trustee has actual knowledge of such default, within 90 days
after such default becomes known to the Trustee, give the Holders of
Securities of such series notice of such default as and to the extent
provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in the case of
any default of the character specified in SECTION 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
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Section 603. CERTAIN RIGHTS OF INDENTURE TRUSTEE.
Subject to the provisions of SECTION 601:
(a) the Indenture Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Trustees may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate or an Opinion of Counsel;
(d) the Indenture Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Indenture Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent, attorney, custodian or nominee appointed with due care by it
hereunder;
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(h) the duties of the Indenture Trustee shall be determined
solely by the express provisions of this Indenture and the Trust Indenture
Act, and the Indenture 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
Indenture Trustee;
(i) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of, or affording protection to, the Indenture Trustee is subject to
the provisions of this SECTION 603;
(j) the Indenture Trustee shall not be liable for interest
on any money received by it hereunder except as the Indenture Trustee may
agree in writing with the Company. Money held in trust by the Indenture
Trustee hereunder need not be segregated from other funds except to the
extent required by law; and
(k) the Indenture Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Indenture Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Indenture Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Indenture Trustee nor
any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. MAY HOLD SECURITIES AND SERVE AS INDENTURE TRUSTEE UNDER OTHER
INDENTURES.
The Indenture Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to SECTIONS 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Indenture Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Subject to the provisions of SECTION 608, the Indenture
Trustee may become and act as indenture trustee under other indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding in the same manner as if it were
not Indenture Trustee.
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Section 606. MONEY HELD IN TRUST.
Money held by the Indenture Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Indenture Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
Section 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Indenture Trustee from time to time such
reasonable compensation as shall be agreed in writing between the Company and
the Indenture Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence, willful misconduct or bad faith; and
(3) to indemnify each of the Indenture Trustee, its
officers, directors, employees and agents or any predecessor Indenture
Trustee, for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The Indenture Trustee shall have a lien prior to the
Securities upon all property and funds held by it hereunder for any amount
owing it or any predecessor Indenture Trustee pursuant to this SECTION 607,
except with respect to funds held in trust for the benefit of the Holders of
particular Securities.
Without limiting any rights available to the Indenture Trustee
under applicable law, when the Indenture Trustee incurs expenses or renders
services in connection with an Event of Default specified in SECTION 501(5)
or 501(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the
Indenture Trustee.
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Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Indenture Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Indenture Trustee
shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by the Trust Indenture Act, the
Indenture Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to Securities of
more than one series.
Section 609. CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Indenture Trustee hereunder
which shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of any federal or state
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Indenture Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Indenture Trustee and
no appointment of a successor Indenture Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Indenture Trustee in accordance with the applicable requirements of SECTION
611.
(b) The Indenture Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Indenture Trustee required by SECTION 611 shall not have been delivered to
the Indenture Trustee within 30 days after the giving of such notice of
resignation, the resigning Indenture Trustee may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a
successor Indenture Trustee with respect to the Securities of such series.
(c) The Indenture Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered
to the Indenture Trustee and to the Company. If the instrument of acceptance
by a successor Indenture Trustee required by SECTION 611 shall not have been
delivered to the Indenture Trustee within 30 days after the giving of such
notice of removal, the Indenture Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Indenture Trustee with respect to the Securities
of such series.
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(d) If at any time:
(1) the Indenture Trustee shall fail to comply with
SECTION 608 after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or
(2) the Indenture Trustee shall cease to be eligible
under SECTION 609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Indenture Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of the
Indenture Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Indenture Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Indenture Trustee and appoint a successor Indenture Trustee
with respect to all Securities, or (ii) subject to SECTION 514, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Indenture Trustee with respect
to all Securities and the appointment of a successor Indenture Trustee or
Indenture Trustees.
(e) If the Indenture Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Indenture Trustee for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Indenture Trustee or Indenture Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Indenture Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Indenture Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
SECTION 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Indenture
Trustee with respect to the Securities of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Indenture
Trustee, the successor Indenture Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of SECTION 611, become the successor Indenture Trustee with
respect to the Securities of such series and to that extent supersede the
successor Indenture Trustee appointed by the Company. If no successor
Indenture Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by SECTION 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Indenture Trustee with respect to the Securities of any
series and each appointment of a successor
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Indenture Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in SECTION 106. Each
notice shall include the name of the successor Indenture Trustee with respect
to the Securities of such series and the address of its Corporate Trust
Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Indenture Trustee with respect to all Securities, every such successor
Indenture Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Indenture Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective and such successor Indenture
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Indenture
Trustee; but, on the request of the Company or the successor Indenture
Trustee, such retiring Indenture Trustee shall, upon payment of all sums due
and owing to the Indenture Trustee under SECTION 607, execute and deliver an
instrument transferring to such successor Indenture Trustee all the rights,
powers and trusts of the retiring Indenture Trustee and shall duly assign,
transfer and deliver to such successor Indenture Trustee all property and
money held by such retiring Indenture Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Indenture Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Indenture Trustee and each successor
Indenture Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Indenture Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Indenture Trustee all the rights, powers,
trusts and duties of the retiring Indenture Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Indenture Trustee relates, (2) if the retiring Indenture Trustee is not
retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to
the Securities of that or those series as to which the retiring Indenture
Trustee is not retiring shall continue to be vested in the retiring Indenture
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 Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that
each such Indenture Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Indenture
Trustee shall become effective to the extent provided therein and each such
successor Indenture Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Securities of that or those
series to which the appointment of such successor Indenture Trustee relates;
but, on request of the Company or any successor Indenture Trustee, such
retiring Indenture Trustee shall duly assign, transfer and deliver to such
successor Indenture Trustee all
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property and money held by such retiring Indenture Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Indenture Trustee relates; PROVIDED, HOWEVER, that to the
extent that such property and money is not held by the Indenture Trustee in
trust for the benefit of the Holders of particular Securities, such retiring
Indenture Trustee shall transfer and deliver to such successor Indenture
Trustee such property and money upon payment of all sums due and owing to
such retiring Indenture Trustee under SECTION 607.
(c) Upon request of any such successor Indenture Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Indenture Trustee all
such rights, powers and trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
(d) No successor Indenture Trustee shall accept its
appointment unless at the time of such acceptance such successor Indenture
Trustee shall be qualified and eligible under this Article.
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Indenture Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee hereunder; PROVIDED, such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Indenture Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Indenture Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Indenture Trustee had
itself authenticated such Securities.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Indenture Trustee shall be or become a
creditor of the Company (or any other obligor upon the Securities), the
Indenture Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or any such other
obligor).
Section 614. INVESTMENT OF CERTAIN PAYMENTS HELD BY THE INDENTURE TRUSTEE.
Any amounts held by the Indenture Trustee hereunder, other
than pursuant to Article Thirteen hereof, shall be invested by the Indenture
Trustee from time to time at the written direction of the Company in such
investments as may be specified by the Company and reasonably agreed to by
the Indenture Trustee from time to time; PROVIDED, that in investing trust
funds pursuant to the terms of this Section and liquidating any investments
held in trust hereunder, the Indenture Trustee
58
may, to the extent permitted by law, purchase securities (including for the
purposes of this paragraph securities as to which the Indenture Trustee or a
Indenture Trustee Affiliate (as defined below) is the issuer or guarantor)
from, and sell securities to, itself or any Indenture Trustee Affiliate and
purchase securities underwritten by, or in which a market is made by, the
Indenture Trustee or a Indenture Trustee Affiliate. For the purposes hereof,
a "INDENTURE TRUSTEE AFFILIATE" shall mean an entity that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Indenture Trustee. Any income or gain
realized as a result of any such investment shall be promptly distributed (in
no event later than the next Business Day) to the Company after any intended
amounts have been paid to the Holders entitled thereto, except after the
occurrence and during the continuance of an Event of Default. The Indenture
Trustee shall have no liability to the Company for any loss resulting from
any investment made in accordance with this Section, and shall bear no
expense in connection with any investment pursuant to this Section. Any such
investment may be sold (without regard to maturity date) by the Indenture
Trustee whenever necessary to make any distribution required by this
Indenture. Nothing herein shall require the Indenture Trustee to invest funds
held by it pursuant to the last paragraph of SECTION 1003.
Section 615. RIGHTS AND PROTECTIONS OF INDENTURE TRUSTEE THAT ALSO ACTS AS
PAYING AGENT OR SECURITY REGISTRAR
In the event that the Indenture Trustee is also acting as
Paying Agent or Security Registrar hereunder, the rights and protections
afforded to the Indenture Trustee pursuant to this Article 6 shall also be
afforded to such Paying Agent or Security Registrar.
Section 616. APPOINTMENT OF AUTHENTICATING AGENT.
The Indenture Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Indenture Trustee to authenticate
Securities of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to SECTION
306, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Indenture Trustee hereunder. Wherever reference is made
in this Indenture to the authentication and delivery of Securities by the
Indenture Trustee or the Indenture Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Indenture Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Indenture Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this
59
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent; PROVIDED,
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Indenture Trustee and to the Company. The
Indenture Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to
the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, the Indenture
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Indenture Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _________________
Bankers Trust Company,
As Indenture Trustee
By ____________________________
As Authenticating Agent
By ____________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Indenture Trustee and Company
Section 701. COMPANY TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the
Indenture Trustee (a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses
of the Holders as of such Regular Record Date, as the case may be, and (b) at
such other times as the Indenture Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in
similar form and content as of a date not more than 15 days prior to the time
such list is furnished. Notwithstanding the foregoing, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Indenture Trustee as provided in
SECTION 701 and the names and addresses of Holders received by the Indenture
Trustee in its capacity as Security Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in SECTION 701 upon receipt of a
new list so furnished.
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(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Indenture
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Indenture Trustee that neither the
Company nor the Indenture Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. REPORTS BY INDENTURE TRUSTEE.
(a) The Indenture Trustee shall transmit to Holders such
reports concerning the Indenture Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Indenture Trustee shall, within sixty days after
each [May 15] following the date of the first issuance of Securities
hereunder deliver to Holders a brief report, dated as of such [May 15], which
complies with the provisions of such Section 313(a). The Indenture Trustee
also shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Indenture Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with
the Company. The Company promptly will notify the Indenture Trustee in
writing when any Securities are listed on any stock exchange or delisted
therefrom.
Section 704. REPORTS BY COMPANY.
The Company shall file with the Indenture Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
PROVIDED, that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Indenture Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
entity or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
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(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form satisfactory
to the Indenture Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance
of every covenant and the satisfaction of every condition of this Indenture
on the part of the Company to be performed, observed or satisfied;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section shall not apply to any merger or consolidation in
which the Company is the surviving entity.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with SECTION 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Indenture Trustee, subject to the provisions of SECTIONS 601
and 603, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer
or lease, and any such assumption, complies with the provisions of this
Article before the Indenture Trustee shall execute any supplemental indenture
required pursuant to this Article.
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ARTICLE NINE
Supplemental Indentures
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Indenture Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Indenture Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form or in the form of
Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities; PROVIDED, that
any such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by SECTIONS 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Indenture 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 Indenture Trustee,
pursuant to the requirements of SECTION 611(b); or
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(9) if allowed, without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the
States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Securities in bearer form or
coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein or to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED, that such action pursuant
to this clause (10), other than with respect to a defective provision, shall
not adversely affect the interests of the Holders of Securities Outstanding
of any series in any material respect.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely
affected by such supplemental indenture (or, if any of the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof), by Act of said Holders delivered to the Company and the
Indenture Trustee, the Company, when authorized by a Board Resolution, and
the Indenture Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to SECTION 502,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect any right of the Holder of any Security
to require the Company to repurchase such Security, or adversely affect the
right to convert any Security as contemplated by ARTICLE FOURTEEN or modify
the provisions of Article Thirteen or the definition of "Senior Debt" in a
manner adverse to the Holder of any Security in any material respect, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for
in this Indenture, or
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(3) modify any of the provisions of this Section, SECTION 513
or SECTION 1007, except to increase any percentage set forth in such Sections
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; PROVIDED, HOWEVER, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Indenture Trustee" and concomitant changes in this Section
and SECTION 1007, or the deletion of this proviso, in accordance with the
requirements of SECTIONS 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Indenture Trustee shall
be entitled to receive, and (subject to SECTION 601) shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of Counsel, each
stating that the execution of such supplemental indenture is authorized and
permitted by this Indenture and, in the case of such Opinion of Counsel, that
such supplemental indenture, when executed by the Trustee, will constitute a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Indenture
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
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Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Indenture Trustee, bear a notation in form approved
by the Indenture Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Indenture Trustee and the
Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of the series in accordance
with the terms of the Securities and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Indenture Trustee is hereby initially
appointed Paying Agent, and the Corporate Trust Office of the Indenture
Trustee is initially designated as the office or agency for the foregoing
purposes. The Company will give prompt written notice to the Indenture
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Indenture Trustee, and
the Company hereby appoints the Indenture Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
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 such purposes and may from time to
time rescind such 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 such purposes. The Company will give prompt written notice to the
Indenture Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
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Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Indenture Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Indenture Trustee) the Company
will promptly notify the Indenture Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Indenture Trustee to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent shall agree with
the Indenture Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Indenture Trustee notice of any default
by the Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and premium,
if any) or interest on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Indenture Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Indenture Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
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Any money deposited with the Indenture Trustee or any Paying
Agent, or received by the Indenture Trustee in respect of obligations
deposited with the Indenture Trustee pursuant to ARTICLE FIFTEEN, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request (unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law), or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof (unless the Company has remitted required moneys or other
property to the appropriate governmental authority under any applicable
escheat or abandoned or unclaimed property laws, or has otherwise been
discharged under such laws or laws of similar applicability, in which case
such Holder shall look solely to its remedies (if any) under such laws and
not to the Company), and all liability of the Indenture Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that
the Indenture Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once,
in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the City of [New York],
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income or profits of the Company or any
Subsidiary, and (2) all lawful claims for labor materials and supplies which,
if unpaid, might by law become a lien upon any property of the Company or any
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim (a) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or (b) which is not of
material importance to the business, operations, financial condition or
results of operations of the Company and its Subsidiaries taken as a whole.
Section 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all of its material properties used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company or any Subsidiary from selling or otherwise disposing for value its
properties in the ordinary course of its business.
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Section 1006. TRUST EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
real estate investment trust existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
Section 1007. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in SECTIONS 1004 to 1006, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Indenture Trustee in respect of any such covenant or condition
shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive compliance
with any covenant or condition hereunder. If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to waive any such compliance, whether or not such
Holders remain Holders after such record date.
Section 1008. COMPLIANCE CERTIFICATE.
The Company will furnish to the Indenture Trustee on or before
[May 1] in each year (beginning the first [May 1] after the date of original
issuance of Securities hereunder) a brief certificate (which need not comply
with SECTION 102) from the principal executive, financial or accounting
officer of the Company stating that in the course of the performance by the
signer of his or her duties as an officer of the Company he or she would
normally have knowledge of any default or non-compliance by the Company in
the performance of any covenants or conditions contained in this Indenture,
stating whether or not he or she has knowledge of any such default or
non-compliance and, if so, specifying each such default or non-compliance of
which the signer has knowledge and the nature thereof. For purposes of this
SECTION 1008, non-compliance or default shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
Section 1009. INSURANCE. The Company will, and will cause each of
its Subsidiaries to, keep all of its insurable properties insured against
loss or damage in commercially reasonable amounts with insurers of recognized
responsibility.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by SECTION 301 for Securities
of any series) in accordance with this Article.
Section 1102. ELECTION TO REDEEM: NOTICE TO INDENTURE TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers' Certificate. In
case of any redemption at the election of the Company of the Securities of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Indenture
Trustee), notify the Indenture Trustee in writing of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Indenture Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
Section 1103. SELECTION BY INDENTURE TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Indenture Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Indenture Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security of such series; PROVIDED, that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Indenture Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Indenture Trustee shall promptly notify the Company 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.
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The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. 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 to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest, if any,
(3) in the case of partial redemption of any Securities, the
principal amounts of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) that there exists a conversion privilege.
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 request, by
the Indenture Trustee in the name and at the expense of the Company (PROVIDED,
that the Indenture Trustee has received the notice of redemption at least 45
days prior to the Redemption Date unless a shorter period is agreed to by the
Indenture Trustee) and shall be irrevocable.
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Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to 11:00 a.m., New York City time, on the Redemption
Date, the Company shall deposit with the Indenture Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in SECTION 1003) an amount of money in the currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to SECTION 301 for the Securities of such series)
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that, unless
otherwise specified as contemplated by SECTION 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of SECTION 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Indenture Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Indenture Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Indenture Trustee shall authenticate and
deliver or make available for delivery to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered. If a Book-Entry Security is so
surrendered, such new Security so issued shall be a new Book-Entry Security.
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ARTICLE TWELVE
Sinking Funds
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this ARTICLE TWELVE shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by SECTION 301 for Securities of such series.
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 such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"OPTIONAL SINKING FUND PAYMENT". If provided for 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 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Indenture
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Indenture Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to SECTION 1202 and stating the basis for such credit
and that such Securities have not been previously so credited and will also
deliver to the Indenture Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Indenture Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in SECTION 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in
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the manner provided in SECTION 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in SECTIONS 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Security,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to the
provisions of ARTICLE FOUR and ARTICLE FIFTEEN (to the extent ARTICLE FIFTEEN is
applicable to such Security), the payment of the principal of (and premium, if
any) and interest on each and all of the Securities (including any amounts
payable upon a purchase of the Securities) are hereby expressly made, to the
extent and in the manner set forth in this Article Thirteen, subordinate and
subject in right of payment to the prior payment in full of all Senior Debt.
Section 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets and liabilities of the Company,
then and in any such event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a "PROCEEDING") the holders of Senior
Debt shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Debt, or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character, whether in
cash, property or securities, on account of principal of (or premium, if any) or
interest on or other obligations in respect of the Securities or on account of
any purchase or other acquisition of Securities by the Company or any Subsidiary
of the Company (all such payments, distributions, purchases and acquisitions
herein referred to, individually and collectively, as a "SECURITIES PAYMENT"),
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any Securities Payment which may be payable
or deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section 1302, the Indenture Trustee or the Holder of any Security shall
have received any Securities Payment prohibited by the foregoing provisions of
this SECTION 1302 before all Senior Debt is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, and if such fact shall, at or prior to the time
of such Securities Payment, have been made known to the Indenture Trustee or, as
the case may be, such Holder, then and in such
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event such Securities Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
For purposes of this ARTICLE THIRTEEN only, the words "ANY
PAYMENT OR DISTRIBUTION OF ANY KIND OR CHARACTER, WHETHER IN CASH, PROPERTY OR
SECURITIES" shall not be deemed to include a payment or distribution of
securities of the Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other entity provided for by such plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Senior Debt to substantially the same extent as the Securities are
so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in ARTICLE EIGHT shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in ARTICLE EIGHT.
Section 1303. ACCELERATION; SENIOR DEBT IN DEFAULT.
In the event that any Securities are declared due and payable
before their Stated Maturity, then in such event the holders of the Senior Debt
outstanding at the time of such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of such
Senior Debt, before the Holders of the Securities are entitled to receive any
Securities Payment.
In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt
beyond any applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Debt shall have occurred and be
continuing permitting the holders of such Senior Debt (or a trustee on behalf of
the holders thereof) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or in the
event any judicial proceeding shall be pending with respect to any such default
in payment or event of default, then no Securities Payment shall be made;
PROVIDED, HOWEVER, that nothing in this paragraph shall prevent the satisfaction
of any sinking fund payment in accordance with ARTICLE
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TWELVE by delivering and crediting, pursuant to SECTION 1202, Securities which
have been acquired (upon redemption or otherwise).
In the event that, notwithstanding the foregoing, the Company
shall make any Securities Payment to the Indenture Trustee or any Holder
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such Securities Payment, have been made known to the
Indenture Trustee or, as the case may be, such Holder, then and in such event
such Securities Payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any Securities
Payment with respect to which SECTION 1302 would be applicable.
Section 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any Proceeding referred to in SECTION 1302 or under the
conditions described in SECTION 1303, from making Securities Payments, or (b)
the application by the Indenture Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such Securities Payment by
the Holders, if, at the time of such application by the Indenture Trustee, it
did not have knowledge that such Securities Payment would have been prohibited
by the provisions of this Article.
Section 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all amounts due or to become
due on or in respect of Senior Debt, or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, the Holders of the Securities shall be subrogated to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Indenture Trustee would be entitled except for the provisions
of this Article, and no payments over pursuant to the provisions of this Article
to the holders of Senior Debt by Holders of the Securities or the Indenture
Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
Section 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Debt on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and
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which, subject to the rights under this Article of the holders of Senior Debt,
is intended to rank equally with all other general obligations of the Company),
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of Senior Debt; or (c) prevent the Indenture Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Indenture Trustee or such
Holder.
Section 1307. INDENTURE TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Indenture Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Indenture Trustee his attorney-in-fact for any and all
such purposes.
Section 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Indenture Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
Section 1309. NOTICE TO INDENTURE TRUSTEE.
The Company shall give prompt written notice to the Indenture
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Indenture Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Indenture Trustee shall not be charged with knowledge of the
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existence of any facts which would prohibit the making of any payment to or by
the Indenture Trustee in respect of the Securities, unless and until the
Indenture Trustee shall have received written notice thereof from the Company or
a holder of Senior Debt or from any trustee therefor; and, prior to the receipt
of any such written notice, the Indenture Trustee, subject to the provisions of
SECTION 601, shall be entitled in all respects to assume that no such facts
exist; PROVIDED, HOWEVER, that if the Indenture Trustee shall not have received
the notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Indenture Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
Subject to the provisions of SECTION 601, the Indenture Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Indenture Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Indenture Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Indenture Trustee as to
the amount of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Indenture Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Indenture Trustee, subject to the provisions of
SECTION 601, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Indenture
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt 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.
Section 1311. INDENTURE TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Indenture Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or securities
to which any holders of Senior Debt shall be entitled by virtue of this Article
or otherwise.
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Section 1312. RIGHTS OF INDENTURE TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF INDENTURE TRUSTEE'S RIGHTS.
The Indenture Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with respect to any Senior
Debt which may at any time be held by it, to the same extent as any other holder
of Senior Debt, and nothing in this Indenture shall deprive the Indenture
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Indenture Trustee under or pursuant to SECTION 607.
Section 1313. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Indenture
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "INDENTURE TRUSTEE" as used in this Article shall in such case (unless
the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Indenture Trustee; PROVIDED, HOWEVER, that SECTION 1312 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
Section 1314. DEFEASANCE OF THIS ARTICLE THIRTEEN.
The subordination of the Securities provided by this ARTICLE
THIRTEEN is expressly made subject to the provisions for defeasance or covenant
defeasance in ARTICLE FIFTEEN and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this ARTICLE THIRTEEN.
ARTICLE FOURTEEN
Conversion of Securities
Section 1401. APPLICABILITY OF ARTICLE.
If pursuant to SECTION 301 provision is made for the conversion
of Securities pursuant to this Article Fourteen, then the provisions of this
ARTICLE FOURTEEN, with such modifications thereto as may be specified pursuant
to SECTION 301 with respect to any Securities, shall be applicable to the
Securities of such series.
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Section 1402. CONVERSION PRIVILEGE AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any portion of the
principal amount thereof which is $1,000 or an integral multiple of $1,000 may
be converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable Common Shares (calculated as to each conversion to
the nearest 1/100 of a share) of the Company, at the conversion price,
determined as hereinafter provided, in effect at the time of conversion. Such
conversion right shall commence at the opening of business on the date provided
for with respect to such Securities and expire at the close of business on the
date provided for with respect to such Securities. In case a Security or
portion thereof is called for redemption, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
The price at which Common Shares shall be delivered upon
conversion is herein referred to as the "conversion price". The conversion
price shall be adjusted in certain instances as provided in SECTION 1405.
Section 1403. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to SECTION 1002, accompanied by written
notice to the Company at such office or agency that the Holder elects to convert
such Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a Redemption Date within such
period) be accompanied by payment in immediately available funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being surrendered
for conversion. Except as provided in the preceding sentence and subject to the
penultimate paragraph of SECTION 307, no payment or adjustment shall be made
upon any conversion on account of any interest accrued on the Securities
surrendered for conversion or on account of any dividends on the Common Shares
issued upon conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall cease, and the Person
or Persons entitled to receive the Common Shares issuable upon conversion shall
be treated for all purposes as the record holder or holders of such Common
Shares at such time. As promptly as practicable on or after the conversion
date, the Company shall issue and shall deliver at such office or agency a
certificate or certificates for the number of full Common Shares issuable
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upon conversion, together with payment in lieu of any fraction of a share, as
provided in SECTION 1404.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Indenture Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities of authorized denominations in aggregate principal
amount equal to the unconverted portion of the principal amount of such
Security.
Section 1404. FRACTIONS OF SHARES.
No fractional Common Shares shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional Common Share which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the market price per Common Share (as
determined by the Board of Trustees or in any manner prescribed by the Board of
Trustees) at the close of business on the day of conversion.
Section 1405. ADJUSTMENT OF CONVERSION PRICE.
(1) In case at any time after the date of the issuance of the
applicable Securities, the Company shall pay or make a dividend or other
distribution on any class of shares of beneficial interest of the Company in
Common Shares, the conversion price in effect at the opening of business on the
day following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
conversion price by a fraction of which the numerator shall be the number of
Common Shares outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of Common Shares at any time outstanding shall
not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of Common
Shares. The Company will not pay any dividend or make any distribution on
Common Shares held in the treasury of the Company.
(2) In case at any time after the date of the issuance of the
applicable Securities, the Company shall issue rights or warrants to all holders
of its Common Shares (not being available on an equivalent basis to Holders of
the Securities upon conversion) entitling them to subscribe for or purchase
Common Shares at a price per share less than the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Shares
on the date fixed for the determination of shareholders entitled to receive such
rights or warrants (other than pursuant
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to a dividend reinvestment plan, any employee benefit plan of the Company or
any obligation of the Company existing as of the original date of issuance of
the applicable Securities), the conversion price in effect at the opening of
business on the day following the date fixed for such determination shall be
reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of oCmmon
Shares which the aggregate of the offering price of the total number of
Common Shares so offered for subscription or purchase would purchase at such
current market price, and the denominator shall be the number of Common
Shares outstanding at the close of business on the date fixed for such
determination plus the number of Common Shares so offered for subscription or
purchase, such reduction to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of Common Shares at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of Common Shares. The Company will not issue any rights or
warrants in respect of Common Shares held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the
applicable Securities, outstanding Common Shares shall be subdivided into a
greater number of Common Shares, the conversion price in effect at the opening
of business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case outstanding
Common Shares shall each be combined into a smaller number of Common Shares, the
conversion price in effect at the opening of business on the day following the
day upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(4) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise, distribute
to all holders of its Common Shares evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid in cash out of
the retained earnings of the Company and any dividend or distribution referred
to in paragraph (1) of this Section), the conversion price shall be adjusted so
that the same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the close of business on the date fixed for
the determination of shareholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Shares
on the date fixed for such determination less the then fair market value (as
determined by the Board of Trustees, whose determination shall be conclusive and
described in a Board Resolution filed with the Indenture Trustee) of the portion
of the assets or evidences of indebtedness so distributed applicable to one
Common Share and the denominator shall be such current market price per share of
the Common Shares, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution.
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(5) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise, distribute
to all holders of its Common Shares cash (excluding any cash that is distributed
upon a merger or consolidation to which SECTION 1412 applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Shares made exclusively in cash
within the 12 months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to this paragraph (5) has been made and
(II) the aggregate of any cash plus the fair market value (as determined by the
Board of Trustees, whose determination shall be conclusive and described in a
Board Resolution) of any non-cash consideration payable in respect of any tender
offer by the Company or any of its subsidiaries for all or any portion of the
Common Shares concluded within the 12 months preceding the date of payment of
such distribution and in respect of which no adjustment pursuant to paragraph
(6) of this Section has been made, exceeds 15% of the product of the current
market price per share of the Common Shares on the date for the determination of
holders of Common Shares entitled to receive such distribution times the number
of Common Shares outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
conversion price shall be decreased so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the close of business on the date fixed for determination of the shareholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Shares on the date fixed for such
determination less an amount equal to the quotient of (x) the excess of such
combined amount over such 15% and (y) the number of Common Shares outstanding on
such date for determination and (ii) the denominator of which shall be equal to
the current market price per share (determined as provided in paragraph (8) of
this Section) of the Common Shares on such date for determination.
(6) In case at any time after the date of the issuance of the
applicable Securities, a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Shares shall expire and such tender offer (as
amended upon the expiration thereof) shall require the payment to shareholders
of an aggregate consideration having a fair market value (as determined by the
Board of Trustees, whose determination shall be conclusive and described in a
Board Resolution) that combined together with (I) the aggregate of the cash plus
the fair market value (as determined by the Board of Trustees, whose
determination shall be conclusive and described in a Board Resolution), as of
the expiration of such tender offer, of any non-cash consideration payable in
respect of any other tender offer, by the Company or any Subsidiary for all or
any portion of the Common Shares expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to this paragraph (6) has been made and (II) the aggregate amount of any
distributions to all holders of the Company's Common Shares made exclusively in
cash within 12 months preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to paragraph (5) of this Section has
been made, exceeds 15% of the product of the current market price per share of
the Common Shares (determined as provided in paragraph (8) of this Section) as
of the last time (the "EXPIRATION TIME") tenders could have been made pursuant
to such tender offer (as it may be amended) times the number of Common Shares
outstanding (including any tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of
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business on the day after the date of the Expiration Time, the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price immediately prior to close of business on
the date of the Expiration Time by a fraction (i) the numerator of which
shall be equal to (A) the product of (I) the current market price per share
of the Common Shares (determined as provided in paragraph (8) of this
Section) on the date of the Expiration Time and (II) the number of Common
Shares outstanding (including any tendered shares) on the Expiration Time
less (B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate non-cash consideration payable to shareholders
based on the acceptance (up to any maximum specified in the terms of the
tender offer) of Purchased Shares, and (ii) the denominator of which shall be
equal to the product of (A) the current market price per share of the Common
Shares (determined as provided in paragraph (8) of this Section) as of the
Expiration Time and (B) the number of Common Shares outstanding (including
any tendered shares) as of the Expiration Time less the number of all shares
accepted for payment pursuant to such tender offer (the shares deemed so
accepted up to any such maximum, being referred to as the "PURCHASED SHARES").
(7) The reclassification of Common Shares into securities
including securities other than Common Shares (other than any reclassification
upon a consolidation or merger to which SECTION 1412 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Shares to all
holders of Common Shares (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of shareholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of Common Shares outstanding
immediately prior to such reclassification into the number of Common Shares
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) For the purpose of any computation under paragraphs (2),
(4), (5) and (6) of this Section, the current market price per Common Share on
any date shall be deemed to be the average of the daily closing prices for the
five consecutive Trading Days selected by the Company commencing not more than
20 Trading Days before, and ending not later than the earlier of the day in
question and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. The closing price for each day shall
be the last reported sales price regular way or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if the
Common Shares are not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the Common Shares are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Shares are not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose. For purposes of this
paragraph, the term "'ex date", when used with respect to any issuance or
distribution, means
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the first date on which the Common Shares trade regular way on such exchange
or in such market without the right to receive such issuance or distribution.
(9) No adjustment in the conversion price shall be required
unless such adjustment (plus any adjustments not previously made by reason of
this paragraph (9)) would require an increase or decrease of at least 1% in such
price; PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph
(9) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (9) shall
be made by the Company and shall be made to the nearest cent or to the nearest
1/100 of a share, as the case may be.
(10) The Company may make such reductions in the conversion
price, in addition to those required by this Section, as it considers to be
advisable in order to avoid or diminish any income tax to any holders of Common
Shares resulting from any dividend or distribution of shares of beneficial
interest or issuance of rights or warrants to purchase or subscribe for shares
of beneficial interest or from any event treated as such for income tax purposes
or for any other reasons. The Company shall have the power to resolve any
ambiguity or correct any error in this paragraph (10) and its actions in so
doing shall be final and conclusive.
Section 1406. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with SECTION 1405 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to SECTION 1002; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall forthwith be
required, and as soon as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses as they shall
appear in the Security Register. Failure to deliver such notice shall not
affect the legality or validity of any such conversion price adjustment.
Section 1407. NOTICE OF CERTAIN CORPORATE ACTION.
In case at any time after the date 20 days prior to the date on
which the Securities first become convertible:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Shares payable otherwise than in cash out of its
retained earnings; or
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(b) the Company shall authorize the granting to the holders of
its Common Shares of rights or warrants to subscribe for or purchase any shares
of beneficial interest of any class or of any other rights; or
(c) of any reclassification of the Common Shares of the
Company (other than a subdivision or combination of its outstanding Common
Shares), or of any consolidation or merger to which the Company is a party and
for which approval of any shareholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to SECTION 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Shares
of record to be entitled to such dividend, distribution, authorization of rights
or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Shares of record shall be entitled
to exchange their Common Shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Neither the failure to give such notice
nor any defect therein shall affect the legality or validity of the proceedings
described in clauses (a) through (d) of this SECTION 1407. If at the time the
Indenture Trustee shall not be the conversion agent, a copy of such notice shall
also forthwith be filed by the Company with the Indenture Trustee.
Section 1408. COMPANY TO RESERVE COMMON SHARES.
The Company shall at all times reserve and keep available, free
from pre-emptive rights, out of its authorized but unissued Common Shares, for
the purpose of effecting the conversion of Securities, the full number of Common
Shares then issuable upon the conversion of all outstanding Securities.
Section 1409. TAXES ON CONVERSIONS.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of Common Shares on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of Common Shares in a name other than that of the Holder of the
Security or Securities to be converted, and no such issue or delivery shall be
made unless and until the Person
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requesting such issue has paid to the Company the amount of any such tax, or
has established to the satisfaction of the Company that such tax has been
paid.
Section 1410. COVENANT AS TO COMMON SHARES.
The Company covenants that all Common Shares which may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable
and, except as provided in SECTION 1409, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
Section 1411. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Indenture Trustee to be canceled by or at the direction of the Indenture
Trustee, which shall dispose of the same as provided in SECTION 309.
Section 1412. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In case of any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding Common Shares of the
Company) or any sale or transfer of all or substantially all of the assets of
the Company, the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute and
deliver to the Indenture Trustee a supplemental indenture providing that the
Holder of each Security then outstanding shall have the right thereafter, during
the period such Security shall be convertible as specified in SECTION 1402, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of Common Shares of the Company into which such Security
might have been converted immediately prior to such consolidation, merger, sale
or transfer, assuming such holder of Common Shares of the Company (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be ("CONSTITUENT PERSON"), or an Affiliate of a constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer (PROVIDED, that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each Common Share of the Company held immediately
prior to such consolidation, merger, sale or transfer by other than a
constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("NON-ELECTING SHARE"), then for the
purpose of this SECTION 1412 the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares), and assuming, if such
consolidation, merger, sale or transfer is prior to the date upon which the
Securities first become convertible, that the Securities were convertible at the
time of such consolidation, merger, sale or transfer at the initial conversion
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price specified in SECTION 1402 as adjusted from the date of the issuance of the
applicable Securities to such time pursuant to SECTION 1405. Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this ARTICLE FOURTEEN. The
above provisions of this Section shall similarly apply to successive
consolidations, mergers, sales or transfers.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
Section 1501. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
Unless, pursuant to SECTION 301, provision is made that either or
both of (a) defeasance of the Securities of a series under SECTION 1502 or (b)
covenant defeasance of the Securities of a series under SECTION 1503 shall not
apply to the Securities of a series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this ARTICLE
FIFTEEN, with such modifications thereto as may be specified pursuant to SECTION
301 with respect to any Securities, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either SECTION 1502
(if applicable) or SECTION 1503 (if applicable) applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this ARTICLE FIFTEEN.
Section 1502. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if applicable) to
have this SECTION 1502 applied to any series of Securities, the Company shall
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series, and the provisions of ARTICLE THIRTEEN
shall cease to be effective, on and after the date the conditions precedent
set forth below are satisfied (hereinafter, "DEFEASANCE"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities
of such series which shall thereafter be deemed to be "Outstanding" only for
the purposes of the Sections of this Indenture referred to in clauses (A) and
(B) of this SECTION 1502, and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Indenture Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of Outstanding Securities of such series to receive,
solely from the trust fund described in SECTION 1504 as more fully set forth
in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under SECTIONS 305, 306, 1002 and
1003 and such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Indenture Trustee hereunder and (D)
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this ARTICLE FIFTEEN. Subject to compliance with this ARTICLE FIFTEEN, the
Company may exercise its option under this SECTION 1502 notwithstanding the
prior exercise of its option under SECTION 1503 with respect to the
Securities of such series. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 1503. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if applicable) to have
this SECTION 1503 applied to any series of Securities, the Company shall be
released from its obligations under SECTION 801 (and any covenant made
applicable to such Securities pursuant to SECTION 301), the occurrence of an
event specified in SECTION 501(4) (with respect to SECTION 801 or any such
covenant) (and any other Event of Default applicable to such Securities that are
determined pursuant to SECTION 301 to be subject to this provision) shall not be
deemed to be an Event of Default with respect to the Outstanding Securities of
such series and the provisions of ARTICLE THIRTEEN shall cease to be effective
on and after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and such Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
SECTION 801 (and any other covenant made applicable to such Security pursuant to
SECTION 301 and any such Events of Default), but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of any
reference in any such Section or such other covenant to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby. Notwithstanding the defeasance by the
Company of its obligations under SECTION 801, any successor shall be required to
assume the Company's obligations under SECTION 607 as a condition to such
succession.
Section 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions precedent to application of
either SECTION 1502 or SECTION 1503 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Indenture Trustee (or another indenture trustee satisfying
the requirements of SECTION 609 who shall agree to comply with the provisions of
this ARTICLE FIFTEEN applicable to it) 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 such Securities, (A) money in
an amount (in such currency, currencies or currency units in which such
Securities are then specified as payable at Maturity), or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a combination
thereof in an amount, sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public
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accountants expressed in a written certification thereof delivered to the
Indenture Trustee, to pay and discharge, and which shall be applied by the
Indenture Trustee (or other qualifying indenture trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on the
Outstanding Securities of such series upon the Maturity of such principal,
premium, if any, or interest and (ii) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Indenture Trustee for the redemption of Securities at a future date or dates
in accordance with ARTICLE ELEVEN, which shall be given effect in applying
the foregoing. For this purpose, "U.S. GOVERNMENT OBLIGATIONS" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depositary receipt; PROVIDED, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as SECTIONS 501(5) and 501(6) are concerned, at any time
during the period ending on the 91st day after the date of such deposit or, if
longer, ending on the day following the expiration of the longest preference
period applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Indenture Trustee for the Securities of such series to have a conflicting
interest as defined in SECTION 608 or for purposes of the Trust Indenture Act
with respect to any Securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or material instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under SECTION 1502, the Company
shall have delivered to the Indenture Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of
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this Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(6) In the case of an election under SECTION 1503, the Company
shall have delivered to the Indenture Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to SECTION 301.
(8) The Company shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
SECTION 1502 or the covenant defeasance under SECTION 1503 (as the case may be)
have been complied with.
Section 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of SECTION 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Indenture Trustee or other qualifying indenture trustee
(collectively, for purposes of this SECTION 1505, the "INDENTURE TRUSTEE")
pursuant to SECTION 1504 in respect of the Outstanding Securities of such series
shall be held in trust and applied by the Indenture Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (but not including the Company acting as
its own Paying Agent) as the Indenture Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law. Money so held
in trust shall not be subject to the provisions of ARTICLE THIRTEEN.
The Company shall pay and indemnify the Indenture Trustee against
any tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to SECTION 1504 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Indenture
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
SECTION 1504 which in the opinion of a nationally recognized
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firm of independent public accountants expressed in a written certification
thereof delivered to the Indenture Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with this
Article Fifteen.
Section 1506. REINSTATEMENT.
If the Indenture Trustee or the Paying Agent is unable to apply
any money in accordance with SECTION 1505 by reason of any order or judgment or
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Fifteen until such time as the Indenture
Trustee or Paying Agent is permitted to apply all such money in accordance with
SECTION 1505; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of (and premium, if any) or interest on any such Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Indenture Trustee or the Paying Agent.
Section 1507. QUALIFYING INDENTURE TRUSTEE.
Any indenture trustee appointed pursuant to SECTION 1504 for the
purpose of holding trust funds deposited pursuant to that Section shall be
appointed under any agreement in form acceptable to the Indenture Trustee and
shall provide to the Indenture Trustee a certificate of such indenture trustee,
upon which certificate the Indenture Trustee shall be entitled to conclusively
rely, that all conditions precedent provided for herein to the related
defeasance or covenant defeasance have been complied with. In no event shall
the Indenture Trustee be liable for any acts or omissions of said indenture
trustee.
ARTICLE SIXTEEN
Immunity of Organizers, Promoters, Shareholders, Officers, Trustees and
Employees
Section 1601. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture, or of any Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any organizer,
promoter, shareholder, officer, trustee, or employee, as such, past, present or
future, of the Company or of any successor entity, either directly or through
the Company or any successor entity, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture, any supplemental
indenture modifying this Indenture and the obligations issued hereunder are
solely real estate investment trust obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
organizers, promoters, shareholders,
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officers, trustees, or employees, as such, of the Company or of any successor
entity, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture, in any supplemental indenture modifying this
Indenture or in any of the Securities or implied therefrom; and that any and
all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such organizer, promoter, shareholder, officer, trustee, or employee,
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture, in any supplemental indenture modifying this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture, any supplemental indenture modifying this Indenture and the issue
of such Securities.
*****
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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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.
PRIME GROUP REALTY TRUST
By:
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Name:
Title:
BANKERS TRUST COMPANY, as Indenture Trustee
By:
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Name:
Title:
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