Exhibit 4.2
FORM OF SUBORDINATED INDENTURE
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TYCO INTERNATIONAL LTD.
AND
-----------------------------------,
as Trustee
Indenture
Dated as of ______________ __, 2000
Subordinated Debt Securities
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS ............................................................................... 1
SECTION 1.1 CERTAIN TERMS DEFINED .......................................................... 1
ARTICLE TWO SECURITIES ................................................................................ 6
SECTION 2.1 FORMS GENERALLY ................................................................ 6
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION ................................ 6
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES ........................................... 6
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES ...................................... 8
SECTION 2.5 EXECUTION OF SECURITIES ........................................................ 9
SECTION 2.6 CERTIFICATE OF AUTHENTICATION .................................................. 9
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST ...................... 9
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE ............................................ 10
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES ...................... 11
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF ................................ 12
SECTION 2.11 TEMPORARY SECURITIES ........................................................... 12
SECTION 2.12 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY ........................... 12
ARTICLE THREE COVENANTS OF THE ISSUER AND THE TRUSTEE ................................................. 14
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST .............................................. 14
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. ..................................................... 15
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE ............................. 15
SECTION 3.4 PAYING AGENT ................................................................... 15
SECTION 3.5 CERTIFICATE OF THE ISSUER ...................................................... 16
SECTION 3.6 SECURITYHOLDERS LISTS .......................................................... 16
SECTION 3.7 REPORTS BY THE ISSUER .......................................................... 16
SECTION 3.8 REPORTS BY THE TRUSTEE ......................................................... 16
SECTION 3.9 NOTICE TO TRUSTEE .............................................................. 16
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT .......................... 17
SECTION 4.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF DEFAULT........... 17
SECTION 4.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT .................. 19
SECTION 4.3 APPLICATION OF PROCEEDS ........................................................ 21
SECTION 4.4 SUITS FOR ENFORCEMENT .......................................................... 22
SECTION 4.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS ............................ 22
SECTION 4.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS ........................................ 22
SECTION 4.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS .............. 23
SECTION 4.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT ........ 23
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SECTION 4.9 CONTROL BY SECURITYHOLDERS ..................................................... 23
SECTION 4.10 WAIVER OF PAST DEFAULTS ........................................................ 24
SECTION 4.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD
IN CERTAIN CIRCUMSTANCES .................................................... 24
SECTION 4.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS ................... 24
ARTICLE FIVE CONCERNING THE TRUSTEE ................................................................... 25
SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT;
PRIOR TO DEFAULT ............................................................ 25
SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE .................................................. 26
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES
OR APPLICATION OF PROCEEDS THEREOF .......................................... 27
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC. ...................... 27
SECTION 5.5 MONEYS HELD BY TRUSTEE ......................................................... 27
SECTION 5.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM ................ 28
SECTION 5.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS'CERTIFICATE, ETC. ......................... 28
SECTION 5.8 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE .................................... 28
SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE ...................... 28
SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE ................................. 30
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE ......... 31
ARTICLE SIX CONCERNING THE SECURITYHOLDERS ............................................................ 31
SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS .................................... 31
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES;
RECORD DATE ................................................................. 31
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS ................................................ 32
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING .............................. 32
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN ............................................ 32
ARTICLE SEVEN SUPPLEMENTAL INDENTURES ................................................................. 33
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS ..................... 33
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS ........................ 34
SECTION 7.3 EFFECT OF SUPPLEMENTAL INDENTURE ............................................... 35
SECTION 7.4 DOCUMENTS TO BE GIVEN TO TRUSTEE ............................................... 35
SECTION 7.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES ................... 35
SECTION 7.6 SUBORDINATION IMPAIRED ......................................................... 35
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OR CONVEYANCE ............................................... 35
SECTION 8.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS ................................. 35
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED .............................................. 36
SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE .................................................. 36
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ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS ................................ 37
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE ........................................ 37
SECTION 9.2 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE .................... 37
SECTION 9.3 DEFEASANCE AND DISCHARGE ....................................................... 38
SECTION 9.4 COVENANT DEFEASANCE ............................................................ 38
SECTION 9.5 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE ................................ 38
SECTION 9.6 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES ............ 40
SECTION 9.7 REPAYMENT OF MONEYS HELD BY PAYING AGENT ....................................... 40
SECTION 9.8 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS ...... 40
SECTION 9.9 INDEMNITY FOR DIRECT OBLIGATIONS OF THE UNITED STATES .......................... 41
SECTION 9.10 REINSTATEMENT .................................................................. 41
ARTICLE TEN MISCELLANEOUS PROVISIONS .................................................................. 41
SECTION 10.1 INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF ISSUER
EXEMPT FROM INDIVIDUAL LIABILITY ............................................ 41
SECTION 10.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND SECURITYHOLDERS .... 41
SECTION 10.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE ............................ 41
SECTION 10.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND SECURITYHOLDERS ..................... 42
SECTION 10.5 OFFICERS'CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN .......................................... 42
SECTION 10.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS ................................ 43
SECTION 10.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH
TRUST INDENTURE ACT OF 1939 ................................................. 43
SECTION 10.8 NEW YORK LAW TO GOVERN ......................................................... 43
SECTION 10.9 COUNTERPARTS ................................................................... 43
SECTION 10.10 EFFECT OF HEADINGS ............................................................. 43
ARTICLE ELEVEN REDEMPTION OF SECURITIES AND SINKING FUNDS ............................................. 44
SECTION 11.1 APPLICABILITY OF ARTICLE ....................................................... 44
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS ...................................... 44
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION .................................... 45
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY
FOR SELECTION FOR REDEMPTION ................................................ 45
SECTION 11.5 MANDATORY AND OPTIONAL SINKING FUNDS ........................................... 46
ARTICLE TWELVE SUBORDINATION OF SECURITIES ............................................................ 48
SECTION 12.1 AGREEMENT OF SUBORDINATION ..................................................... 48
SECTION 12.2 PAYMENTS TO HOLDERS ............................................................ 48
SECTION 12.3 SUBROGATION OF SECURITIES ...................................................... 50
SECTION 12.4 AUTHORIZATION TO EFFECT SUBORDINATION .......................................... 51
SECTION 12.5 NOTICE TO TRUSTEE .............................................................. 51
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SECTION 12.6 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS ...................................... 52
SECTION 12.7 NO IMPAIRMENT OF SUBORDINATION ................................................. 52
SECTION 12.8 CERTAIN CONVERSIONS DEEMED PAYMENT ............................................. 53
SECTION 12.9 ARTICLE APPLICABLE TO PAYING AGENTS ............................................ 53
SECTION 12.10 SENIOR INDEBTEDNESS ENTITLED TO RELY ........................................... 53
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THIS INDENTURE, dated as of ________ __, 2000 between TYCO
INTERNATIONAL LTD., a Bermuda company (the "Issuer"), and
[___________________________], a [_________] banking association (the
"Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, and has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the terms "generally accepted
accounting principles" means such accounting principles as are generally
accepted in the United States at the time of any computation. The words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 10% or more of such
specified Person's Capital Stock or any officer or director of any such
specified Person or other Person; (iii) any other Person 10% or more of the
Voting Stock of which is beneficially owned or held directly or indirectly by
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 ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of this Indenture, partnership interests, (whether general or
limited), any other interest or participation that confers on a Person that
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at [_____________________________], Attention:
Corporate Trust Division.
"Depositary" means, unless otherwise specified by the Issuer pursuant
to either Section 2.3 or 2.12, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Global Security" means a Security issued to evidence all or part of
any series of Securities which is executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to an Issuer
order which shall be registered in the name of the Depositary or its nominee.
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"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indebtedness" means, without duplication, the principal or face amount
of (i) all obligations for borrowed money, (ii) all obligations evidenced by
debentures, notes or other similar instruments, (iii) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations as lessee which
are capitalized in accordance with generally accepted accounting principles, and
(v) all Indebtedness of others guaranteed by the Issuer or any of its
subsidiaries or for which the Issuer or any of its subsidiaries is legally
responsible or liable (whether by agreement to purchase indebtedness of, or to
supply funds or to invest in, others).
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means Tyco International Ltd., and, subject to Article Eight,
its successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman or
any vice chairman of the Board of Directors or the president or any vice
president and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (i) the date of such Security or (ii) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means a Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.9 (except with respect to any
such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or any premium or interest on any Securities on behalf of the
Issuer.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Representative" means the (i) indenture trustee or other trustee,
agent or representative for any Senior Indebtedness or (ii) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other
representative, (a) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (b) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee
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customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on, (i) all the Issuer's other indebtedness for money borrowed, other
than the Securities, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, except such indebtedness
as is by its terms expressly stated to be not superior in right of payment to
the Securities or to rank pari passu with the Securities and (ii) any deferrals,
renewals or extensions of any such Senior Indebtedness; provided, however, that
Senior Indebtedness shall not include (1) any obligation of the Issuer to any
Subsidiary, (2) any liability for federal, state, local or other taxes owed or
owing by the Issuer, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (4) any indebtedness,
guarantee or obligation of the Issuer which is expressly subordinate or junior
in right of payment in any respect to any other indebtedness, guarantee or
obligation of the Issuer, including any senior subordinated Indebtedness and any
other subordinated obligations, (5) any obligations with respect to any Capital
Stock, or (6) any Indebtedness incurred in violation of this Indenture. The term
"indebtedness for money borrowed" as used herein shall include, without
limitation, any obligation of, or any obligation guaranteed by, the Issuer for
the repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation for the payment
of the purchase price of property or assets.
"Subsidiary" means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Issuer or by one or more Subsidiaries or by the Issuer and one
or more Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was originally executed.
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
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"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to a resolution of the Board of Directors or in
one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities, as evidenced by their execution of
the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
[ ]
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as Trustee
By
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Authorized Signatory
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Twelve.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth 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 all other
Securities);
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(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11 or 11.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
shall be determined, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
(5) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(6) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and the
price or prices at which and the period or periods within which and the
terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(7) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(8) 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 4.1 or provable in bankruptcy pursuant to
Section 4.2;
(9) whether the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for Global Security or Securities;
(10) whether all of the provisions of this Indenture
relating to the subordination of the Securities (including the
provisions of Article Twelve), or different subordination provisions,
including a different definition of "Senior Indebtedness," will apply
to Securities of the series;
(11) any conversion or exchange features applicable to the
Securities;
(12) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture); and
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(13) if other than the Trustee, any trustees,
authenticating or Paying Agents, transfer agents or registrars or any
other agents with respect to the Securities of such series.
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 such resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer, signed by
both (a) the chairman of its Board of Directors, or any vice chairman of its
Board of Directors, or its president or vice president and (b) its secretary
or any assistant secretary or its treasurer or any assistant treasurer,
without any further action by the Issuer. In authenticating such Securities
and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 5.1) shall be fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of
the Board of Directors authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board
of Directors relating to such series, in each case certified by the
secretary or any assistant secretary of the Issuer;
(3) an executed supplemental indenture setting forth the
form and terms of the securities as required pursuant to Sections 2.1
and 2.3 respectively, if any;
(4) an Officers' Certificate setting forth the form and
terms of the Securities as required pursuant to Section 2.1 and 2.3,
respectively and prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with
Section 10.5, to the effect
(a) that the form or forms and terms of such
Securities have been established by or pursuant to a resolution of the
Board of Directors or by a supplemental indenture as permitted by
Sections 2.1 and 2.3 in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated in
accordance with the terms of this Indenture and delivered by the
Trustee and issued by and delivered by or to the order of the Issuer,
against payment therefor, in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding
obligations of the Issuer;
8
(c) that all laws and requirements in respect of
the execution and delivery by the Issuer of the Securities have been
complied with; and
(d) covering such other matters as the Trustee
may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by both (a) the chairman of its Board of
Directors or any vice chairman of its Board of Directors or its president or
any vice president and (b) its treasurer or any assistant treasurer or its
secretary or any assistant secretary, under its corporate seal which may, but
need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one
of its authorized signatories, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST.
The Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.3. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the
9
Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall not
be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.2 a register or registers in which, subject
to such reasonable regulations as it may prescribe, it will register, and
will register the transfer of, Securities as in this Article provided. Such
register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. At
all reasonable times such register or registers shall be open for inspection
by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
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All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee, duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustees) connected therewith. In case any security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer of the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the
11
Trustee and any agent of the Issuer or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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 (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
SECTION 2.12 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
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(a) If the Issuer shall establish pursuant to Section 2.3
that the Securities of a particular series are to be issued in whole or
in part in the form of one or more Global Securities, then the Issuer
shall execute and the Trustee shall, in accordance with Section 2.4 and
the Issuer order delivered to the Trustee thereunder, authenticate and
deliver, such Global Security or Securities, which (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 Global Security or Securities, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Securities represented
hereby, this Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section
2.12 or of Section 2.8, unless the terms of a Global Security expressly
permit such Global Security to be exchanged in whole or in part for
individual Securities, a Global Security may be transferred, in whole
but not in part and in the manner provided in Section 2.8, only to
another nominee of the Depositary for such Global Security, or by the
nominee of the Depositary to the Depositary, or to a successor
Depositary for such Global Security selected or approved by the Issuer
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global
Security notifies the Issuer that it is unwilling or unable to continue
as Depositary for such Global Security or if at any time the Depositary
for the Securities for such series shall no longer be eligible or in
good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Issuer shall appoint a
successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the
Issuer within 90 days after the Issuer receives notice or becomes aware
of such ineligibility, the Issuer's election pursuant to Section 2.3(9)
shall no longer be effective with respect to such Global Security and
the Issuer will execute, and the Trustee, upon receipt of an Issuer
order for the authentication and delivery of individual Securities of
such series in exchange for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms in
a definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global
Security.
(ii) The Issuer may at any time and in its sole
discretion determine that the Securities of any series issued or
issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event the
Issuer will execute, and the Trustee, upon receipt of an Issuer order
for the authentication and delivery of individual Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like
tenor and terms in a definitive form in an aggregate principal amount
13
equal to the principal amount of such Global Security or Securities
representing such series in exchange for such Global Security or
Securities.
(iii) If specified by the Issuer pursuant to
Section 2.3 with respect to Securities issued or issuable in the form
of a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for
individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge, (1) to each Person
specified by such Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such person's beneficial interest in the Global Security;
and (2) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the
preceding three paragraphs, the Issuer will execute and the Trustee
will authenticate and deliver individual Securities in definitive
registered form in authorized denominations. Upon the exchange of a
Global Security for individual Securities, such Global Security shall
be cancelled by the Trustee. Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the persons in whose names such
Securities are so registered.
SECTION 2.13 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the 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 numbers. The Issuer will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
14
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the
Securities remain outstanding, the Issuer will maintain in The Borough of
Manhattan, The City of New York for each series: an office or agency (a)
where the Securities may be presented for payment, (b) where the Securities
may be presented for registration of transfer and for exchange as in this
Indenture provided and (c) where notices and demands to or upon the Issuer in
respect of the Securities or of this Indenture may be served. The Issuer will
give to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. Unless otherwise specified in
accordance with Section 2.3, the Issuer hereby initially designates the
Corporate Trust Office of the Trustee, as the office to be maintained by it
for each such purpose. In case the Issuer shall fail to so designate or
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the Corporate Trust Office.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
the Trustee, will appoint, in the manner provided in Section 5.9, a Trustee,
so that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 3.4 PAYING AGENT. Whenever the Issuer shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any series, it
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section.
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the Securities
of such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series or of the
Trustee,
(b) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the Paying Agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
15
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Section 9.3 and 9.4.
SECTION 3.5 CERTIFICATE OF THE ISSUER. So long as any of the
Securities remain outstanding, the Issuer will furnish to the Trustee on or
before March 31 in each year (beginning with 2001) a brief certificate (which
need not comply with Section 10.5) executed by the principal executive,
financial or accounting officer of the Issuer on its behalf as to his or her
knowledge of the Issuer's compliance with all covenants and agreements under
the Indenture (such compliance to be determined without regard to any period
of grace or requirement of notice provided under the Indenture). Such
certificate need not include a reference to any non-compliance that has been
fully cured prior to the date as of which such certificate speaks.
SECTION 3.6 SECURITYHOLDERS LISTS. If and so long as the Trustee
shall not be the Security registrar for the Securities of any series, the Issuer
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 REPORTS BY THE ISSUER. So long as any of the Securities
remain outstanding, the Issuer covenants to file with the Trustee, within 15
days after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents, and other reports which
the Issuer may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; provided, however, that
the Issuer shall have no obligation to file such reports with the Trustee as
long as no Securities of any series are outstanding.
SECTION 3.8 REPORTS BY THE TRUSTEE. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 NOTICE TO TRUSTEE. The Issuer shall provide written
notice to the Trustee within 30 days of the occurrence of any Event of
Default under Section 4.1.
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. "Event of Default" with respect to Securities of any
series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; or
(c) default in the payment of any sinking fund
installment as and when the same shall become due and payable by the
terms of the Securities of such series; or
(d) default in the performance, or breach, of any
covenant or agreement of the Issuer in respect of the Securities of
such series (other than a covenant or agreement in respect of the
Securities of such series 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 90 days after the
date on which there has been given, by registered or certified mail, to
the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, 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
(e) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for any substantial part of its property or
ordering the winding up or liquidation of its affairs, and such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or for any
substantial part of its property, or make any general assignment for
the benefit of creditors; or
17
(g) any other Event of Default provided in the
supplemental indenture or resolution of the Board of Directors under
which such series of Securities is issued or in the form of Security
for such series.
If an Event of Default described in clauses (a), (b), (c), (d) or (g)
above (if the Event of Default under clause (d) or (g), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs and
is continuing, then, and in each and every such case, unless the principal of
all of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(g) (if the Event of Default under clause (d) or (g), as the case may be, is
with respect to all series of Securities then Outstanding), (e) or (f) occurs
and is continuing, then and in each and every such case, unless the principal of
all the Securities shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then outstanding and interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable. Any payments by the Issuer on the
Securities following any such acceleration will be subject to the subordination
provisions of Article Twelve to the extent provided therein.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case
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the holders of a majority in aggregate principal amount of all the Securities of
such series, each series voting as a separate class (or of all the Securities,
as the case may be, voting as a single class), then outstanding, by written
notice to the Issuer and to the Trustee, may waive all defaults with respect to
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY
PROVE DEBT. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise--then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on
all Securities of series for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series); and in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and any
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
19
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any series
are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the Securities
of any series, or to the creditors or property of the Issuer or such
other obligor,
(b) unless prohibited by applicable law and regulations,
to vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith and all other amounts due to the
Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization,
20
arrangement, adjustment or composition affecting the Securities of any series or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 5.6;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, subject to Article Twelve, to the payment
of interest on the Securities of such series in default in the order of
the maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, subject to Article Twelve, to the
payment of the whole amount then owing and unpaid upon all
21
the Securities of such series for principal and interest, with interest
upon the overdue principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified in the Securities of
such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest or yield to
maturity, without preference or priority of principal over interest or
yield to maturity, or of interest or yield to maturity over principal,
or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal and accrued and
unpaid interest or yield to maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any
22
right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 4.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE
CERTAIN SUITS. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
SECTION 4.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 4.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 CONTROL BY SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
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Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 WAIVER OF PAST DEFAULTS. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (g)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders waive any past
default or Event of Default referred to in said clause (d) or (g) which relates
to all series of Securities then Outstanding, or described in clause (e) or (f)
of Section 4.1, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Security affected as provided in Section 7.2. In the case of any such waiver,
the Issuer, the Trustee and the Holders of the Securities of each series
affected shall be restored to their former positions and rights hereunder,
respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry
books, notice by mail of all defaults known to the Trustee which have
occurred with respect to such series, such notice to be transmitted within 90
days after the occurrence thereof, unless such defaults shall have been cured
before the giving of such notice (the term "default" or "defaults" for the
purposes of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or
a trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in
the interests of the Securityholders of such series.
SECTION 4.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an
24
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (h) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) (if the suit relates
to all the Securities then Outstanding), (a), (f) or (g) of Section 4.1, 10% in
aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a series has occurred (which has
not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(i) the duties and obligations of the Trustee
with respect to the Securities of any series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically
25
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 4.9 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred therein or
thereby;
26
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal,
bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
investigation reasonably requested by the Holders as aforesaid shall be
paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application
by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 9.8 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
27
SECTION 5.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not regularly in its employ)
except to the extent any such expense, disbursement or advance may arise from
its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor trustee for, and to hold it harmless against,
any loss, liability or expense arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and
the performance of its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises, except to the extent such loss liability or expense is due to the
negligence or bad faith of the Trustee or such predecessor trustee. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor trustee and to pay or reimburse the Trustee and
each predecessor trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all
series of Securities by giving written notice of resignation to the
Issuer and by mailing notice thereof by first class mail to Holders of
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the applicable series of Securities at their last addresses as they
shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee
shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may,
subject to the provisions of Section 4.12, on behalf of himself and all
others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by
the Issuer or by any Securityholder who has been a bona fide Holder of
a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 310(a) of the Trust Indenture
Act of 1939 and shall fail to resign after written request therefor by
the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting
with respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities 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 removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time outstanding may at
any time remove the Trustee with respect to Securities of such series
and appoint a successor trustee with respect to the securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed
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and to the Issuer the evidence provided for in Section 6.1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this
Section 5.9 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 5.10.
SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 5.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.8,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.6.
If a successor trustee is appointed with respect to the securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
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SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation or national banking association into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation or national banking association resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or national banking association succeeding to the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation or national banking
association shall be eligible under the provisions of Section 5.8, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders 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 Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 5.1 and 5.2)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES; RECORD DATE. Subject to Sections 5.1 and 5.2, the execution of
any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the registrar thereof. The Issuer may set a record date for
purposes of determining the identity of holders of Securities of any series
entitled to vote or consent to any action referred to in Section 6.1, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
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other provisions hereof, only Holders of Securities of such series of record on
such record date shall be entitled to so vote or give such consent or revoke
such vote or consent.
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any
such person, or upon his order, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which
such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 5.1 and 5.2, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or
32
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable and which shall not adversely affect the interests of the
Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3; and
33
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, 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 any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or modify the provisions of this Indenture with
respect to the subordination of such series of Securities in a manner adverse to
the Holders of Securities of such series, or reduce any amount payable on
redemption thereof or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 4.1 or the amount thereof provable in
bankruptcy pursuant to Section 4.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 6.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 7.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject
to the provisions of Sections 5.1 and 5.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Seven complies with
the applicable provisions of this Indenture.
SECTION 7.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any
action taken at any such meeting. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then outstanding.
SECTION 7.6 SUBORDINATION IMPAIRED. No provision in any
supplemental indenture which affects the superior position of the holders of
Senior Indebtedness shall be effective against holders of Senior Indebtedness.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing
35
corporation, or the successor corporation or the Person which acquires by sale
or conveyance substantially all the assets of the Issuer (if other than the
Issuer) shall expressly assume the due and punctual payment of the principal of
and interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and agreements of
this Indenture to be performed or observed by the Issuer, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Issuer or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
agreement.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. In case of any such
consolidation, merger, sale or conveyance in which the Issuer is not the
continuing corporation, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named herein. Such
successor corporation may cause to be signed, and may issue either in its own
name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to
the provisions of Sections 5.1 and 5.2, may receive an opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any
such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
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ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series outstanding hereunder (other
than Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.9) or (c) (i) all the securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable
within one year or may, at the option of the Issuer, be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (ii) the issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the entire amount
in cash (other than moneys repaid by the Trustee or any Paying Agent to the
issuer in accordance with Section 9.8) or direct obligations of the United
States of America, backed by its full faith and credit, maturing as to
principal and interest in such amounts and at such times as will insure the
availability of cash sufficient to pay at maturity or upon redemption all
Securities of such series (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.9) not theretofore delivered to the Trustee
for cancellation, including principal and interest due or to become due on or
prior to such date of maturity as the case may be, and if, in any such case,
the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer with respect to Securities of such series, then this
Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer and exchange
of securities of such series, and the Issuer's right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of principal thereof
and interest thereon upon the original stated due dates therefor (but not
upon acceleration) and remaining rights of the holders to receive mandatory
sinking fund payments, if any, in each case solely out of property so
deposited with the Trustee, and (iv) the rights, obligations and immunities
of the Trustee hereunder, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with
respect to such series; provided, that the rights of Holders of the
Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any, services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities
of such series.
SECTION 9.2 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. In addition to discharge of the Indenture pursuant to
Section 9.1, with respect to any series of
37
Securities where the exact amount of principal and interest due on which can be
determined at the time of making the deposit referred to in Section 9.5(a), the
Issuer may at its option by resolution of the Board of Directors elect at any
time either (a) to effect a defeasance (as defined in Section 9.3) of the
Securities of such series under Section 9.3 or (b) to effect a covenant
defeasance (as defined in Section 9.4) of the Securities of such series under
Section 9.4, in each case upon compliance with the applicable conditions set
forth below in this Article Nine.
SECTION 9.3 DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise
of the option set forth in clause (a) of Section 9.2 with respect to the
Securities of a series, the Issuer shall be deemed to have been discharged
from its obligations, and the provisions of Article Twelve shall cease to be
effective, with respect to the Securities of such series on and after the
date the conditions precedent set forth in Section 9.5 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Securities of such series and to have satisfied all its
other obligations under the Securities of such series and under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the
same), except for, (i) rights of registration of transfer and exchange of
Securities of such series, and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not
upon acceleration), and remaining rights of the holders to receive mandatory
sinking fund payments, if any, in each case solely from the trust funds
described in Section 9.5(a); and (iv) the rights, obligations and immunities
of the Trustee hereunder. Subject to compliance with this Article Nine, the
Issuer may exercise its option under this Section 9.3 notwithstanding the
prior exercise of its option under Section 9.4 with respect to the Securities
of such series.
SECTION 9.4 COVENANT DEFEASANCE. Upon the Issuer's exercise of the
option set forth in clause (b) of Section 9.2 with respect to the Securities
of a series, the Issuer shall be released from its obligations under Sections
3.9 and 8.1 with respect to the Securities of such series, and the provisions
of Article Twelve shall cease to be effective with respect to such Securities
as provided in this section, on and after the date the conditions precedent
set forth in Section 9.5 are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Securities of such series, the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or Article Twelve, whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of Default
under Section 4.1, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 9.5 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions precedent to the application of either
Section 9.3 or Section 9.4 to the Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused
to be deposited with the Trustee, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as
trust funds in trust, specifically pledged as security for, and
38
dedicated solely to, the benefit of the holders of the Securities of
such series (i) money in an amount, or (ii) direct obligations of the
United States of America, backed by its full faith and credit, 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 in respect of the Securities of
such series, money in an amount, or (iii) a combination thereof,
sufficient (without consideration of any reinvestment of such money,
principal or interest), in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee to pay and discharge, (A) the principal of
and interest on all Securities of such series on each date such
principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable
in accordance with the terms of this Indenture and the Securities of
such series. Before such a deposit the Issuer may make arrangements
satisfactory to the Trustee for the redemption of the Securities of
such series at a future date or dates in accordance with Article
Eleven, if applicable to the Securities of such series, which shall be
given effect in applying the foregoing.
(b) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing (i)
on the date of such deposit or (ii) insofar as Subsections 4.1(f) and
4.1(g) are concerned, at any time during the period ending on the 121st
day after the date of such deposit or, if longer, ending on the date
following the expiration of the longest preference period applicable to
the Issuer in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(c) Such defeasance or covenant defeasance will not
(i) cause the Trustee for the Securities of such series to have a
conflicting interest for purposes of the Trust Indenture Act of 1939
with respect to any securities of the Issuer or (ii) 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.
(d) Such defeasance or covenant defeasance will not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Issuer is a
party or by which it is bound.
(e) If the Securities of such series are then listed on
any national securities exchange registered under the Securities
Exchange Act of 1934, as amended, the Issuer shall have delivered to
the Trustee an Opinion of Counsel to the effect that the exercise of
the option under Section 9.3 or 9.4, as the case may be, will not cause
such Securities to be delisted.
(f) In the case of an election under Section 9.3, the
Issuer shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Issuer has received from the United States
Internal Revenue Service (the "IRS") a private letter ruling,
(ii) there has been published by the IRS a general revenue ruling,
or (iii) since the date of this
39
Indenture there has been a change in the applicable Federal income tax
law, in each case to the effect that, and based thereon such opinion
shall confirm that, the holders of the 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.
(g) in the case of an election under Section 9.4, the
Issuer shall have delivered to the Trustee an opinion of Counsel to the
effect that the holders of the 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.
(h) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Issuer in connection therewith
pursuant to Section 2.3.
(i) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 9.3 or the covenant defeasance under Section 9.4 (as the
case may be) have been complied with.
SECTION 9.6 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT
OF SECURITIES. Subject to Section 9.8, all moneys deposited with the Trustee
pursuant to Section 9.1 or 9.5 shall be held in trust and applied by it to
the payment, either directly or through any Paying Agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be segregated
from other funds except to the extent required by law. Moneys so held in
trust shall not be subject to the provisions of Article Twelve.
SECTION 9.7 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any Paying Agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
SECTION 9.8 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or
any Paying Agent for the payment of the principal of or interest on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due
and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Issuer by the Trustee for such
series or such Paying Agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
40
or abandoned or unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease.
SECTION 9.9 INDEMNITY FOR DIRECT OBLIGATIONS OF THE UNITED STATES.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the money or the direct obligations of
the United States of America deposited pursuant to Section 9.1 or 9.5 or the
principal or interest received in respect of such obligations.
SECTION 9.10 REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money or direct obligations of the United States of
America in accordance with Section 9.1 or 9.5 by reason of any legal
proceedings or order or judgment or any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Nine until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with this Article Nine; provided that,
if the Issuer makes any payment of principal of or interest on any such
Security following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the holders of such Securities to receive such
payment from the money or direct obligations of the United States of America
held by the Trustee or the Paying Agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
shareholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the holders thereof and as part of the consideration for, and
as a condition of, the issue of the Securities.
SECTION 10.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND SECURITYHOLDERS. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and their successors and the
Holders of the Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the Holders of the Securities.
SECTION 10.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
41
SECTION 10.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to Tyco International Ltd. at The Zurich Centre,
Second Floor, 90 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇:
Treasurer, with a copy to Tyco International (US) Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made and received at the Corporate Trust office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. 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. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate (other than those provided for in Section 3.5 and
Section 11.5) or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied
42
with and (d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If
the date of maturity of interest on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of interest or principal need not
be made on such date, but may be made on the next succeeding Business Day
with the same force and affect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period after
such date.
SECTION 10.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 (an "incorporated provision"), such incorporated
provision shall control.
SECTION 10.8 NEW YORK LAW TO GOVERN. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, without regard to principles of the conflict of laws thereof.
SECTION 10.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
43
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Securities of any series to be redeemed as a
whole or in part at the option of the Issuer shall be given by mailing notice
of such redemption by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear
upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part only
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
The Issuer will deposit with the Trustee or with one or more Paying
Agents (or, if the Issuer is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount of money
sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If less than all the outstanding
Securities of a series are to be redeemed, the Issuer will deliver to the
Trustee at least 10 days before the notice of redemption referred to in the
first paragraph of this Section 11.2 is first mailed to Holders, but no less
than 45 days prior to the date fixed for redemption, an Officers' Certificate
stating the aggregate principal amount of Securities to be redeemed.
44
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in
the payment of such Securities at the redemption price, together with
interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as
provided in Sections 5.5 and 9.8, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in respect of
such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said notice,
said securities or the specified portions thereof shall be paid and redeemed
by the Issuer at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that any
semiannual payment of interest becoming due on the date fixed for redemption
shall be payable to the Holders of such Securities registered as such on the
relevant record date subject to the terms and provisions of Section 2.4
hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
45
SECTION 11.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such forty-fifth day, to deliver such written statement and Securities specified
in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Issuer
46
shall so request) with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 or less and the Issuer makes no such request then it shall be
carried over until a sum in excess of $50,000 is available. The Trustee shall
select, in the manner provided in Section 11.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities of such series
(or portions thereof) so selected. Securities of any series which are (a) owned
by the Issuer or an entity known by the Trustee to be directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer, as shown by the Security register, and not known to the Trustee to have
been pledged or hypothecated by the Issuer or any such entity or (b) identified
in an officers' Certificate at least 60 days prior to the sinking fund payment
date as being beneficially owned by, and not pledged or hypothecated by, the
Issuer or an entity directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer shall be excluded from
Securities of such series eligible for selection for redemption. The Trustee, in
the name and at the expense of the Issuer (or the Issuer, if it shall so request
the Trustee in writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 11.2
(and with the effect provided in Section 11.3) for the redemption of Securities
of such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Four and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 4.9 or
the default cured on or before the forty-fifth day preceding the sinking fund
payment date in any year, such moneys
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shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 12.1 AGREEMENT OF SUBORDINATION. Except as otherwise
provided in a supplemental indenture or pursuant to Section 2.3, the Issuer
covenants and agrees, and each Holder of Securities issued hereunder by his
or her acceptance thereof likewise covenants and agrees, that all Securities
shall be issued subject to the provisions of this Article Twelve; and each
Person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest on all
Securities (including, but not limited to, the redemption price with respect to
the Securities called for redemption in accordance with Article Eleven as
provided in the Indenture) issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Twelve shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 12.2 PAYMENTS TO HOLDERS. No payment shall be made with
respect to the principal of, or premium, if any, or interest on the
Securities (including, but not limited to, the redemption price with respect
to the Securities to be called for redemption in accordance with Article
Eleven as provided in the Indenture), except payments and distributions made
by the Trustee as permitted by the first or second paragraph of Section 12.5,
if a default in the payment of principal, premium, interest or other
obligations due on any Senior Indebtedness occurs and is continuing (or, in
the case of Senior Indebtedness for which there is a period of grace, in the
event of such a default that continues beyond the period of grace, if any,
specified in the instrument evidencing such Senior Indebtedness), unless and
until such default shall have been cured or waived or shall have ceased to
exist.
The Issuer may and shall resume payments on and distributions in
respect of the Securities on the date upon which the default is cured or waived
or ceases to exist unless this Article Twelve otherwise prohibits the payment or
distribution at the time of such payment or distribution.
Upon any payment by the Issuer, or distribution of assets of the Issuer
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Issuer, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness, or payment thereof in
accordance with its terms provided for in cash or other payment satisfactory to
the holders of such Senior Indebtedness, before any payment is
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made on account of the principal of, premium, if any, or interest on the
Securities (except payments made pursuant to Article Nine from monies deposited
with the Trustee pursuant thereto prior to commencement of proceedings for such
dissolution, winding-up, liquidation or reorganization); and upon any such
dissolution or winding-up or liquidation or reorganization of the Issuer or
bankruptcy, insolvency, receivership or other proceeding, any payment by the
Issuer, or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provision of this Article
Twelve, shall (except as aforesaid) be paid by the Issuer or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders of the Securities or by the Trustee
under this Indenture if received by them or it, directly to the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, or as otherwise required by
law or a court order) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full, in cash or other payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any payment or distribution or
provision therefor is made to the Holders of the Securities or to the Trustee.
For purposes of this Article Twelve, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Twelve with
respect to the Securities to the payment of all Senior Indebtedness which may at
the time be outstanding; provided that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any reorganization or readjustment,
and (ii) the rights of the holders of Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Issuer with, or the merger of the Issuer into, another
corporation or the liquidation or dissolution of the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Eight shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 12.2 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eight.
In the event of the acceleration of the Securities because of an Event
of Default, no payment or distribution shall be made to the Trustee or any
Holder of Securities in respect of the principal of, premium, if any, or
interest on the Securities (including, but not limited to, the redemption price
with respect to the Securities called for redemption in accordance with Article
Eleven as provided in the Indenture), except payments and distributions made by
the Trustee as permitted by the first or second paragraph of Section 12.5, until
all Senior Indebtedness has been paid in full in cash or other payment
satisfactory to the holders of Senior Indebtedness or such acceleration is
rescinded in accordance with the terms of this Indenture. If payment of the
Securities is accelerated because of an Event of Default, the Issuer shall
promptly notify holders of Senior Indebtedness of the acceleration, unless there
are no payment obligations
49
of the Issuer thereunder and all obligations thereunder to extend credit have
been terminated or expired.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full in cash or other payment satisfactory to the holders of such Senior
Indebtedness, or provision is made for such payment thereof in accordance with
its terms in cash or other payment satisfactory to the holders of such Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Issuer, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 12.2 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 5.6. This Section 12.2 shall be subject
to the further provisions of Section 12.5.
SECTION 12.3 SUBROGATION OF SECURITIES. After all Senior
Indebtedness is paid in full and until the Securities are paid in full,
Holders of Securities shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article Twelve to Holders of Senior Indebtedness
which otherwise would have been made to Holders of Securities is not, as
between the Issuer and Holders of Securities, a payment by the Issuer on
Senior Indebtedness.
Nothing contained in this Article Twelve or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Issuer, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
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 is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Issuer other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Twelve of the holders of Senior
Indebtedness in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article Twelve, the Trustee, subject to the provisions of Section 5.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other
50
person making such payment or distribution, delivered to the Trustee or to the
Holders of the Securities, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon and all
other facts pertinent thereto or to this Article Twelve.
SECTION 12.4 AUTHORIZATION TO EFFECT SUBORDINATION. Each Holder of
a Security by the Holder's acceptance thereof authorizes and directs the
Trustee on the Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article
Twelve and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 4.2 hereof at least 30 days before the expiration of the time to file
such claim, the holders of any Senior Indebtedness or their representatives
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of the Securities.
SECTION 12.5 NOTICE TO TRUSTEE. The Issuer shall give prompt
written notice in the form of an Officers' Certificate to a Responsible
Officer of the Trustee and to any Paying Agent of any fact known to the
Issuer which would prohibit the making of any payment of monies to or by the
Trustee or any Paying Agent in respect of the Securities pursuant to the
provisions of this Article Twelve. Notwithstanding the provisions of this
Article Twelve or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee in respect
of the Securities pursuant to the provisions of this Article Twelve, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office from the Issuer (in the form of
an Officers' Certificate) or a Representative or a holder or holders of
Senior Indebtedness or from any trustee thereof; and before the receipt of
any such written notice, the Trustee, subject to the provisions of Section
5.1, shall be entitled in all respects to assume that no such facts exist;
provided that if on a date not fewer than two Business Days prior to the date
upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of the principal of, or
premium, if any, or interest on any Security) the Trustee shall not have
received, with respect to such monies, the notice provided for in this
Section 12.5, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may
be received by it on or after such prior date.
Notwithstanding anything in this Article Twelve to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Article Nine, and any such payment shall not be
subject to the provisions of Section 12.1 or 12.2.
The Trustee, subject to the provisions of Section 5.1, shall be
entitled to rely on the delivery to it of a written notice by a Representative
or a person representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such notice has been given
by a Representative or a holder of Senior Indebtedness or a trustee on behalf of
any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
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amount of Senior Indebtedness held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such person under this Article Twelve, and if
such evidence is not furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
SECTION 12.6 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article Twelve in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 5.6 or elsewhere in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Twelve, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 5.1, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to Holders of Securities,
the Issuer or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Twelve or otherwise.
SECTION 12.7 NO IMPAIRMENT OF SUBORDINATION. No right of any
present or future holder of any Senior Indebtedness 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 Issuer or by any act or failure
to act, in good faith, by any such holder, or by any noncompliance by the
Issuer with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof which any such holder may have or otherwise be
charged with.
SECTION 12.8 CERTAIN CONVERSIONS DEEMED PAYMENT. For the purposes
of this Article Twelve only, (i) the issuance and delivery of junior
securities upon conversion of Securities in accordance with Article Two and
any supplemental indenture shall not be deemed to constitute a payment or
distribution on account of the principal of, or premium, if any, or interest
on Securities or on account of the purchase or other acquisition of
Securities, and (ii) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares issued as a result of conversion of
securities issued), property or securities (other than junior securities)
upon conversion of a Security shall be deemed to constitute payment on
account of the principal of such Security. For the purposes of this Section
12.8, the term "junior securities" means (a) shares of any stock of any class
of the Issuer, or (b) securities of the Issuer which are subordinated in
right of payment to all Senior Indebtedness which may be outstanding at the
time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article. Nothing contained in this Article Twelve or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Issuer, its creditors other than holders of Senior
Indebtedness and the Holders of Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security (in
accordance with Section 2.3(11)).
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SECTION 12.9 ARTICLE APPLICABLE TO PAYING AGENTS. If at any time
any Paying Agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this
Article shall (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 Trustee; provided, however, that the first
paragraph of Section 12.5 shall not apply to the Issuer or any Affiliate of
the Issuer if it or such Affiliate acts as Paying Agent.
SECTION 12.10 SENIOR INDEBTEDNESS ENTITLED TO RELY. The holders of
Senior Indebtedness shall have the right to rely upon this Article Twelve,
and no amendment or modification of the provisions contained herein shall
diminish the rights of such holders unless such holders shall have agreed in
writing thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of ____________, 2000.
TYCO INTERNATIONAL LTD.
By
..................................
Attest:
By
........................................
[______________________], as Trustee
By
..................................
Attest:
By
........................................
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