AMARIN CORPORATION PLC, as Issuer, and [ ], as Trustee SUBORDINATED INDENTURE Dated as of _____________, _____
Exhibit 4.10
AMARIN
CORPORATION PLC,
as
Issuer,
and
[ ],
as Trustee
Dated
as
of _____________, _____
TABLE
OF CONTENTS
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Page
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ARTICLE
1.
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DEFINITIONS
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Section
1.01.
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Certain
Terms Defined
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1
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ARTICLE
2.
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SECURITIES
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Section
2.01.
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Forms
Generally
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5
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Section
2.02.
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Form
of Trustee’s Certification of Authentication
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5
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Section
2.03.
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Amount
Unlimited; Issuable in Series
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5
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Section
2.04.
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Authentication
and Delivery of Securities
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8
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Section
2.05.
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Execution
of Securities
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9
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Section
2.06.
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Certificate
of Authorization
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9
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Section
2.07.
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Denomination
and Date of Securities; Payments of Interest
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9
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Section
2.08.
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Registration,
Transfer and Exchange
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10
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Section
2.09.
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Mutilated,
Defaced, Destroyed, Lost and Stolen Securities
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10
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Section
2.10.
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Cancellation
of Securities
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11
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Section
2.11.
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Temporary
Securities
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11
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Section
2.12.
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CUSIP
Numbers, ISINs and Common Codes
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12
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ARTICLE
3.
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COVENANTS
OF THE ISSUER AND THE TRUSTEE
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Section
3.01.
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Payment
of Principal and Interest
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12
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Section
3.02.
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Offices
for Payments, etc
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12
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Section
3.03.
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Appointment
to Fill a Vacancy in Office of Trustee
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13
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Section
3.04.
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Paying
Agents
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13
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Section
3.05.
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Certificates
of the Issuer
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13
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Section
3.06.
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Securityholders
Lists
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14
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Section
3.07.
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Reports
by the Issuer
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14
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Section
3.08.
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Reports
by the Trustee
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14
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Section
3.09.
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Calculation
of Original Issue Discount
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14
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ARTICLE
4.
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REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT
OF DEFAULT
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Section
4.01.
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Event
of Default; Acceleration of Maturity; Waiver of Default
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14
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Section
4.02.
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Collection
of Indebtedness by Trustee; Trustee May Prove Debt
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16
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Section
4.03.
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Application
of Proceeds
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18
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Section
4.04.
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Suits
for Enforcement
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19
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Section
4.05.
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Restoration
of Rights on Abandonment of Proceeding
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19
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Section
4.06.
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Limitations
on Suits by Securityholder
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19
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-i-
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Section
4.07.
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Unconditional
Right of Securityholders to Institute Certain Suits
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20
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Section
4.08.
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Powers
and Remedies Cumulative; Delay or Omission Not Waiver of
Default
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20
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Section
4.09.
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Control
by Securityholders
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20
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Section
4.10.
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Waiver
of Past Defaults
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21
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Section
4.11.
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Trustee
to Give Notice of Default, But May Withhold in Certain
Circumstances
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21
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Section
4.12.
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Right
of Court to Require Filing of Undertaking to Pay Costs
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21
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ARTICLE
5.
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CONCERNING
THE TRUSTEE
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Section
5.01.
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Duties
and Responsibilities of the Trustee; During Default; Prior to
Default
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22
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Section
5.02.
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Certain
Rights of the Trustee
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23
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Section
5.03.
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Trustee
Not Responsible for Recitals, Disposition of Securities or Application
of
Proceeds Thereof
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24
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Section
5.04.
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Trustee
and Agents May Hold Securities; Collections, etc
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24
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Section
5.05.
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Moneys
Held by Trustee
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24
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Section
5.06.
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Compensation
and Indemnification of Trustee and Its Prior Claim
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24
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Section
5.07.
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Right
of Trustee to Rely on Officers’ Certificate, etc
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25
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Section
5.08.
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Persons
Eligible for Appointment as Trustee
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25
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Section
5.09.
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Resignation
and Removal; Appointment of Successor Trustee
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25
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Section
5.10.
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Acceptance
of Appointment By Successor Trustee
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26
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Section
5.11.
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Merger,
Conversion, Consolidation or Succession to Business of
Trustee
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27
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ARTICLE
6.
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CONCERNING
THE SECURITYHOLDERS
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Section
6.01.
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Evidence
of Action Taken by Securityholders
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28
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Section
6.02.
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Proof
of Execution of Instruments and of Holding of Securities; Record
Date
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28
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Section
6.03.
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Holders
to Be Treated as Owners
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28
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Section
6.04.
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Securities
Owned by Issuer Deemed Not Outstanding
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28
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Section
6.05.
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Right
of Revocation of Action Taken
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29
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ARTICLE
7.
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SUPPLEMENTAL
INDENTURES
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Section
7.01.
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Supplemental
Indentures Without Consent of Securityholders
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29
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Section
7.02.
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Supplemental
Indentures With Consent of Securityholders
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30
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Section
7.03.
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Effect
of Supplemental Indenture
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31
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Section
7.04.
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Documents
to Be Given to Trustee
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31
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Section
7.05.
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Notation
on Securities in Respect of Supplemental Indentures
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32
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ARTICLE
8.
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CONSOLIDATION,
MERGER, SALE OR CONVEYANCE
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Section
8.01.
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Issuer
May Consolidate, etc., on Certain Terms
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32
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-ii-
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Section
8.02.
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Successor
Substituted
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32
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Section
8.03.
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Reserved
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32
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Section
8.04.
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Reserved
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32
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Section
8.05.
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Opinion
of Counsel to Trustee
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33
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ARTICLE
9.
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SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
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Section
9.01.
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Satisfaction
and Discharge of Indenture
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33
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Section
9.02.
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Application
by Trustee of Funds Deposited for Payment of Securities
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35
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Section
9.03.
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Repayment
of Moneys Held by Paying Agent
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36
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Section
9.04.
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Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years
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36
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ARTICLE
10.
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MISCELLANEOUS
PROVISIONS
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Section
10.01.
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Incorporators,
Stockholders, Members, Officers and Directors of Issuer Exempt from
Individual Liability
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36
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Section
10.02.
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Provisions
of Indenture for the Sole Benefit of Parties and
Securityholders
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36
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Section
10.03.
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Successors
and Assigns of Issuer Bound by Indenture
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37
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Section
10.04.
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Notices
and Demands on Issuer, Trustee and Securityholders
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37
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Section
10.05.
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Officers’
Certificates and Opinions of Counsel; Statements to Be Contained
Therein
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38
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Section
10.06.
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Payments
Due on Saturdays, Sundays and Holidays
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38
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Section
10.07.
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Conflict
of Any Provision of Indenture with Trust Indenture Act of
1939
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39
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Section
10.08.
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New
York Law to Govern
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39
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Section
10.09.
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Counterparts
|
39
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Section
10.10.
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Effect
of Headings
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39
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Section
10.11.
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Securities
in a Non-U.S. Currency
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39
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Section
10.12.
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Submission
to Jurisdiction
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39
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Section
10.13.
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Judgment
Currency
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40
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ARTICLE
11.
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REDEMPTION
OF SECURITIES AND SINKING FUNDS
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Section
11.01.
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Applicability
of Article
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40
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Section
11.02.
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Notice
of Redemption; Partial Redemptions
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40
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Section
11.03.
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Payment
of Securities Called for Redemption
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41
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Section
11.04.
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Exclusion
of Certain Securities from Eligibility for Selection for
Redemption
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42
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Section
11.05.
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Mandatory
and Optional Sinking Funds
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42
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-iii-
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ARTICLE
12.
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RESERVED
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ARTICLE
13.
|
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SUBORDINATION
OF SECURITIES
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Section
13.01.
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Agreement
to Subordinate
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44
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Section
13.02.
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Payments
to Holders of Securities
|
44
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Section
13.03.
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No
Payment When Senior Debt Is in Default
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45
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Section
13.04.
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Payment
Permitted in Certain Situations
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45
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Section
13.05.
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Subrogation
to Rights of Holders of Senior Debt
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45
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Section
13.06.
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Provisions
Solely to Define Relative Rights
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46
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Section
13.07.
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Trustee
to Effectuate Subordination
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46
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Section
13.08.
|
No
Waiver of Subordination Provisions
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46
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Section
13.09.
|
Notice
to Trustee
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46
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Section
13.10.
|
Reliance
on Judicial Order or Certificate of Liquidating Agent
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47
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Section
13.11.
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Trustee
Not Fiduciary for Holders of Senior Debt
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47
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Section
13.12.
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Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights
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47
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Section
13.13.
|
Article
Applicable to Paying Agents
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47
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-iv-
THIS
INDENTURE, dated as of _____________, _____, among AMARIN CORPORATION PLC (the
“Issuer”), a public limited company incorporated under the laws of England and
[ ]
(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;
WHEREAS,
the Issuer has duly authorized the execution and delivery of this Indenture
to
provide, among other things, for the issuance, authentication, delivery and
administration of the Securities;
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
1.
DEFINITIONS
Section
1.01. Certain
Terms Defined.
The
following terms (except as otherwise expressly provided herein or in any
indenture supplemental hereto, 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 term “generally accepted
accounting principles” means such accounting principles as are generally
accepted 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.
“Authorized
Agent” shall have the meaning set forth in Section 10.12.
“Bankruptcy
Law” means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar U.S. Federal, state or
any foreign law for the relief of debtors.
“Bearer
Security” means any Security other than a Registered Security.
-2-
“Board”
means the board of directors or the board of managers of the Issuer, or any
other body or Person authorized by the organizational documents or by the
members of the Issuer to act for it.
“Board
Resolution” means one or more resolutions, certified by the secretary of the
Board to have been duly adopted or consented to by the Board and to be in full
force and effect, and delivered to the Trustee.
“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” means:
(1) in
the
case of a corporation or a company, corporate stock or shares;
(2) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock or shares;
(3) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4) any
other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
“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[s] of the Trustee located in New York [or London,
as applicable] at which at any particular time its corporate trust business
shall be administered of this Indenture is located in New York [or London,
respectively]).
“Depositary”
means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Depositary” shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
“Depositary” as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Registered Global Securities of that
series.
“Dollar”
means the coin or currency of the United States of America as at the time of
payment that is legal tender for the payment of public and private
debts.
“Event
of
Default” means any event or condition specified as such in Section
4.01.
“Holder”,
“Holder of Securities”, “Securityholder” or other similar terms mean the
registered holder of any Security.
-3-
“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 (except as otherwise provided in Article 5) Amarin Corporation plc, a
public limited company incorporated under the laws of England, and, subject
to
Article 8, its successors and assigns.
“Judgment
Currency” shall have the meaning set forth in Section 10.13.
“New
York
Banking Day” shall have the meaning set forth in Section 10.13.
“Non-U.S.
Currency” means a currency issued by the government of a country other than the
United States (or any currency unit comprised of any such
currencies).
“Officers’
Certificate” means a certificate (i) signed by any two officers of the Issuer
authorized by the Board to execute any such certificate and (ii) delivered
to
the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939.
“Opinion
of Counsel” means an opinion in writing signed by legal counsel to the Issuer
who may be an employee of or counsel to the Issuer and who shall be reasonably
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 10.05, if and to the extent required hereby.
“Original
Issue Date” of any Security (or portion thereof) means the earlier of (a) the
date of such Security or (b) the date of any Security (or portion thereof)
for
which such Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
“Original
Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration
of
acceleration of the maturity thereof pursuant to Section 4.01.
“Outstanding”,
when used with reference to Securities, shall, subject to the provisions of
Section 6.04, 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;
(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
-4-
(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
2.09
(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 4.01.
“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”.
“Registered
Global Security”, means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance
with Section 2.03, and bearing the legend prescribed by the applicable
supplemental indenture.
“Registered
Security” means any Security registered on the Security register of the
Issuer.
“Required
Currency” shall have the meaning set forth in Section 10.13.
“Responsible
Officer” when used with respect to the Trustee means any officer of the Trustee,
including any vice president, assistant vice president, secretary, assistant
secretary, any assistant treasurer, any trust officer, or any other officer
of
the Trustee customarily performing functions similar to those performed by
any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer’s knowledge of and familiarity with that particular
subject and who shall have direct responsibility for the administration of
this
Indenture.
“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
Debt” means, unless otherwise specified in an applicable supplemental indenture,
the principal of (and premium, if any) and interest, if any, on all obligations
and indebtedness (other than the Securities) of, or guaranteed or assumed by,
the Issuer that are for borrowed money or are evidenced by bonds, debentures,
notes or other similar instruments, whether outstanding on the date of this
Indenture or thereafter created, incurred, assumed or guaranteed, and all
amendments, renewals, extensions, modifications and refundings of such
indebtedness and obligations, unless in any such case the instrument by which
such indebtedness or obligations are created, incurred, assumed or guaranteed
by
the Issuer, or are evidenced, provides that they are subordinate, or not
superior, in right of payment to the Securities.
“Trustee”
means the Person identified as “Trustee” in the first paragraph hereof and,
subject to the provisions of Article 5, shall also include any successor
trustee.
-5-
“Trust
Indenture Act of 1939” (except as otherwise provided in Sections 7.01 and 7.02)
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally executed.
“U.S.
Government Obligations” shall have the meaning set forth in Section
9.01.
“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”.
“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
2.
SECURITIES
Section
2.01. 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 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 or lithographed on security printed
paper
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
2.02. Form
of
Trustee’s Certification 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.
[ ]
_______________________
as
Trustee
By:
___________________
Authorized
Signatory
Section
2.03. Amount
Unlimited; Issuable in Series.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series and unless provided for otherwise
in an indenture supplemental hereto, each such series shall be subordinated
and
subject in right to all Senior Debt in accordance with Article 13. There shall
be established in or pursuant to a resolution of the Board
-6-
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,
(a) the
designation of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(b) any
limit
on the aggregate principal amount of the Securities of the series that may
be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 2.08,
2.09, 2.11 or 11.03);
(c) the
percentage or percentages of the principal amount at which the debt securities
will be issued;
(d) if
other
than Dollars, the coin or currency in which the Securities of that series are
denominated (including, but not limited to, any Non-U.S. Currency);
(e) the
date
or dates on which the principal of the Securities of the series is
payable;
(f) 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 and/or the method by which such rate or rates or date or
dates shall be determined;
(g) 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 3.02);
(h) the
price
or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or
in
part, at the option of the Issuer, pursuant to any sinking fund or
otherwise;
(i) the
obligation, if any, of the Issuer to redeem, purchase or repay Securities of
the
series pursuant to any mandatory redemption sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices at which and the
period or periods within which and 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;
(j) if
other
than denominations of $1,000 and any multiple thereof, the denominations in
which Securities of the series shall be issuable;
(k) 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 4.01 or provable in bankruptcy
pursuant to Section 4.02;
(l) if
other
than the coin or currency in which the Securities of that series are
denominated, the coin or currency in which payment of the principal of or
interest on the Securities of such series shall be payable;
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(m) if
the
principal of or interest on the Securities of such series are to be payable,
at
the election of the Issuer or a Holder thereof, in a coin or currency other
than
that in which the Securities are denominated, the period or periods within
which, and the terms and conditions upon which, such election may be
made;
(n) if
the
amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other
than that in which the Securities of the series are denominated, or with
reference to any currencies, securities or baskets of securities, commodities
or
indices, the manner in which such amounts shall be determined;
(o) if
the
Holders of the Securities of the series may convert or exchange the Securities
of the series into or for securities of the Issuer or of other entities or
other
property (or the cash value thereof), the specific terms of and period during
which such conversion or exchange may be made;
(p) whether
the Securities of the series will be issuable as Registered Securities (and
if
so, whether such Securities will be issuable in whole or in part in the form
of
Registered Global Securities) or Bearer Securities (with or without coupons),
or
any combination of the foregoing, any restrictions applicable to the offer,
sale, transfer, exchange or delivery of Bearer Securities or Registered
Securities or the payment of interest thereon and, if other than as provided
herein, the terms upon which Bearer Securities of any series may be exchanged
for Registered Securities of such series and vice versa;
(q) the
identity of the Depositary;
(r) whether
and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. Person in respect
of
any tax, assessment or governmental charge withheld or deducted and, if so,
whether the Issuer will have the option to redeem such Securities rather than
pay such additional amounts;
(s) if
the
Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or satisfaction of
other
conditions, the form and terms of such certificates, documents or
conditions;
(t) any
trustees, depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such
series;
(u) any
applicable United States federal income tax and English income tax consequences,
including, but not limited to: whether and under what circumstances the Issuer
will pay additional amounts on Securities for any tax, assessment or
governmental charge withheld or deducted and, if so, whether it will have the
option to redeem those Securities rather than pay the additional amounts; tax
considerations applicable to any discounted Securities or to Securities issued
at par that are treated as having been issued at a discount for United States
federal income tax purposes; and tax considerations applicable to any Securities
denominated and payable in foreign currencies;
(v) whether
the Securities of such series will be secured;
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(w) any
applicable selling restrictions;
(x) whether
the Securities of such series will be entitled to the benefits of
guarantees;
(y) any
other
events of default, modifications or elimination of any acceleration rights,
or
covenants with respect to the Securities of such series and any terms required
by or advisable under applicable laws or regulations; and
(z) any
other
terms of 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 or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution or in any such indenture
supplemental hereto.
Section
2.04. 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
any two officers of the Issuer authorized by the Board to execute any such
order, 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 5.01) shall be fully protected in relying upon:
(a) a
certified copy of any resolution or resolutions of the Board authorizing the
action taken pursuant to the resolution or resolutions delivered under clause
2.04(b) below;
(b) a
copy of
any resolution or resolutions of the Board relating to such series, in each
case
certified by the Secretary or an Assistant Secretary of the Issuer;
(c) an
executed supplemental indenture, if any;
(d) an
Officers’ Certificate setting forth the form and terms of the Securities as
required pursuant to Sections 2.01 and 2.03, respectively and prepared in
accordance with Section 10.05;
(e) an
Opinion
of Counsel, prepared in accordance with Section 10.05, to the effect
that
(i) the
form
or forms and terms of such Securities have been established by or pursuant
to a
resolution of the Board or by a supplemental indenture as permitted by Sections
2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) such
Securities, when authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such Opinion
of
Counsel, will constitute valid and binding obligations of the Issuer;
and
(iii) all
laws
and requirements in respect of the execution and delivery by the Issuer of
the
Securities have been complied with; and
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(iv) 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
2.05. Execution
of Securities.
The
Securities shall be signed on behalf of the Issuer by any two officers of the
Issuer authorized by the Board to execute such Securities, which Securities
may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. 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
2.06. Certificate
of Authorization.
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 officers, 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
2.07. 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 2.03. 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 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 2.03.
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 be not less than five Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the holders of Securities
not less
-10-
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
2.08. 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 3.02 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
3.02, 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 3.02, 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.
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 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.
Section
2.09. 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
fur-
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nish
to
the Issuer and 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 in the case of mutilation or defacement
shall surrender the Security to the Trustee or such agent.
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
Trustee or its agent) 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
the
Trustee and any agent of the Issuer or 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 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.
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 dispose of cancelled Securities held by it in
accordance with its procedures for the disposition of cancelled Securities
and
deliver a certificate of disposition 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
-12-
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 3.02, 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 unless otherwise established
pursuant to Section 2.03.
Section
2.12. CUSIP
Numbers,
ISINs
and Common Codes.
The
Issuer in issuing the Securities may use one or more “CUSIP” numbers “ISINs”
and/or Common Codes, and, if so, the Trustee shall use such CUSIP numbers,
ISINs
and Common Codes 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 in writing of any change in the CUSIP numbers,
ISINs
and/or Common Codes.
ARTICLE
3.
COVENANTS
OF THE ISSUER AND THE TRUSTEE
Section
3.01. 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 (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the
respective times and in the manner provided in such Securities. Subject to
any
other provisions that may be established pursuant to Section 2.03, the interest
on Securities (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the written order
of
the Holders thereof and, at the option of the Issuer, may be paid by wire
transfer or by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer.
Section
3.02. 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 [or London, England], the following
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 2.03, 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.
The
Issuer
may from time to time designate one or more additional offices or agencies
where
the Securities of a series may be presented for payment, where the Securities
of
that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.03 and where the Securities of that series may be
presented for registration of transfer as provided in this Indenture, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; pro-
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vided,
however, that no such designation or rescission shall in any manner relieve
the
Issuer of its obligation to maintain the agencies provided for in this Section.
The Issuer will give to the Trustee prompt written notice of any such
designation or rescission thereof.
Section
3.03. Appointment
to Fill a Vacancy in Office of Trustee.
The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.09, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
Section
3.04. Paying
Agents.
Whenever
the Issuer shall appoint a paying agent other than the Trustee with respect
to
the Securities of any series, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that
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) that
it
will 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 3.04(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.
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 9.03
and 9.04.
Section
3.05. Certificates
of the Issuer.
The
Issuer will furnish to the Trustee within 120 days after the end of each fiscal
year of the Issuer (beginning with [__]), an Officers’ Certificate of the
Issuer, as to the signers’ knowledge of the Issuer’s compliance with all
conditions and covenants un-
-14-
der
this
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture). In the event
an
Officer of the Issuer comes to have actual knowledge of an Event of Default
or
an event which, with notice or the lapse of time or both, would constitute
an
Event of Default, regardless of the date, the Issuer shall deliver an Officers’
Certificate to the Trustee specifying such Default and the nature and status
thereof.
Section
3.06. 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 2.03 for non-interest bearing securities in each year,
and
(b) at such other times as the Trustee may request in writing, within thirty
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
3.07. Reports
by the Issuer.
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 that 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. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuer’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).
Section
3.08. 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
3.09. Calculation
of Original Issue Discount.
The
Issuer shall provide to the Trustee on a timely basis such information as the
Trustee requires to enable the Trustee to prepare and file any form required
to
be submitted by the Trustee on behalf of the Issuer with the Internal Revenue
Service and the Holders of Securities relating to original issue discount,
including, without limitation, Form 1099-OID or any successor form.
ARTICLE
4.
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
4.01. Event
of Default; Acceleration of Maturity; Waiver of Default.
Unless
otherwise established in accordance with Section 2.03 or by any applicable
supplemental indenture, “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 premium or principal in respect of the Securities;
or
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(b) default
for more than 30 days in the payment of interest in respect of the Securities;
or
(c) the
failure by the Issuer to perform or observe any other obligations under the
Securities which failure continues for the period of 60 days after it receives
notice of default stating it is in breach; or
(d) the
entry
by a court having jurisdiction in the premises of:
(i) a
decree
or order for relief in respect of the Issuer in an involuntary case or
proceeding under any applicable Bankruptcy Law; or
(ii) a
decree
or order adjudging the Issuer bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Issuer under any applicable Bankruptcy Law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or
other similar official of the Issuer or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance
of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(e) the
commencement by the Issuer of a voluntary case or proceeding under any
applicable Bankruptcy Law, other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by the Issuer to
the
entry of a decree or order for relief in respect of the Issuer in an involuntary
case or proceeding under any applicable Bankruptcy Law or other similar law
or
to the commencement of any bankruptcy or insolvency case or proceeding against
the Issuer, or the filing by the Issuer of a petition or answer or consent
seeking reorganization or relief under any applicable Bankruptcy Law, or the
consent by the Issuer to the filing of such petition or to the appointment
of or
the taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Issuer or of any substantial
part
of its property, or the making by the Issuer of an assignment for the benefit
or
creditors, or the admission by the Issuer in writing of its inability to pay
its
debts generally as they become due, or the taking of corporate action by the
Issuer expressly in furtherance of any such action; or
(f) any
other
Event of Default provided in the supplemental indenture or resolution of the
Board under which such series of Securities is issued or in the form of Security
for such series.
Unless
otherwise set forth in any applicable supplemental indenture, if an Event of
Default described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(f) above (if
the
Event of Default under clauses 4.01(c) or 4.01(f) is with respect to less than
all series of Securities then Outstanding) occurs and is continuing, then,
and
in each and every such case, except for any series the principal of which 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 all series
affected thereby 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 the Securities of any such affected 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 affected
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. Unless otherwise set forth in any applicable supplemental
indenture, if an Event of Default described in clauses 4.01(c) or 4.01(f) (if
the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to all
series of Securities at the time
-16-
Outstanding)
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 then Outstanding Securities hereunder (treated as one class)
for which any applicable supplemental indenture does not prevent acceleration
under the relevant circumstances, 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. Unless otherwise set forth in any applicable supplemental
indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e),
then
the principal and accrued and unpaid interest, and premium of any, with respect
to any Securities then Outstanding shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
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 the holders of a majority in aggregate
principal amount of all the Securities of each such series (or of all the
Securities, as the case may be), then Outstanding (in each case treated as
one
class), by written notice to the Issuer and the Trustee, may waive all defaults
with respect to each 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
4.02. 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
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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 such 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 registered 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 of such Securities and collect
in the manner provided by law out of the property of the Issuer or other obligor
of 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
of the Securities under Bankruptcy 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 of 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 of 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 arrange-
-18-
ment,
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.
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, 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
4.03. Application
of Proceeds.
Subject
to the subordination provisions in this Indenture, any moneys collected by
the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities 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;
SECOND
:
In case the principal of the Securities of such series in respect of which
moneys have been collected shall not have become and be then due and payable,
to
the payment of interest 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
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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, to
the
payment of the whole amount then owing and unpaid upon all 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
4.04. 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
4.05. Restoration
of Rights on Abandonment of Proceeding.
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
4.06. Limitations
on Suits by Securityholder.
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 each affected series then Outstanding (treated as a single
class) shall have made written request upon the Trustee to institute such action
or proceedings in its own name as trustee hereunder and shall have offered
to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee
for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 4.09; 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,
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that
no
one or more Holders of Securities of any series shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture
to
affect, disturb or prejudice the rights of any other 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
4.07. 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
4.08. Powers
and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except
as provided in Section 4.06, 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 4.06,
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
4.09. Control
by Securityholders.
The
Holders of a majority in aggregate principal amount of the Securities of each
series affected (with all such series voting as a single 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 5.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee
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 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
Nothing
in
this Indenture shall impair the right of the Trustee in its discretion to take
any action deemed proper by the Trustee and which is not inconsistent with
such
direction or directions by Securityholders.
-21-
Section
4.10. Waiver
of Past Defaults.
Prior to
the acceleration of the maturity of any Securities as provided in Section 4.01,
the Holders of a majority in aggregate principal amount of the Securities of
all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may on behalf of
the
Holders of all such Securities waive any past default or Event of Default
described in Section 4.01 and its consequences, 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. In the case of any such waiver,
the Issuer, the Trustee and the Holders of all such Securities shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Upon
any
such waiver, such default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall
be
deemed to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or
Event of Default or impair any right consequent thereon.
Section
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
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 4.01(c) or 4.01(f) (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 4.01(c) or 4.01(f) (if
the
suit relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 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.
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ARTICLE
5.
CONCERNING
THE TRUSTEE
Section
5.01. 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 with respect to such series of Securities 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 person would exercise or use under the
circumstances in the conduct of his or her 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 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 (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein);
(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 4.09 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.
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The
provisions of this Section 5.01 are in furtherance of and subject to Sections
315 and 316 of the Trust Indenture Act of 1939.
Section
5.02. Certain
Rights of the Trustee.
In
furtherance of and subject to the Trust Indenture Act of 1939, and subject
to
Section 5.01:
(a) the
Trustee may conclusively 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 may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the
Trustee may consult with counsel of its selection 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 security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be
incurred therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior
to
the occurrence of an Event of Default 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 indemnity satisfactory to it against such
expenses or liabilities as a condition to proceeding; the reasonable expenses
of
every such investigation shall be paid by the Issuer or, if paid by the Trustee
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;
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(h) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officers’ Certificate;
(i) the
Trustee shall not be deemed to have notice of any Event of Default or an event
which, with notice or lapse of time or both, would constitute an Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder;
and
(k) the
Trustee may request that the Issuer deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
Section
5.03. 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
5.04. 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
5.05. Moneys
Held by Trustee.
Subject
to the provisions of Section 9.04 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.
Section
5.06. 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, compensation as the Issuer and the Trustee shall
from time to time agree in writing (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 and their agents 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
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faith
of
the Trustee, its agents or employees 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.
When
the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in clauses (d) or (e) of Section 4.01, the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for
the
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar
law.
Section
5.07. Right
of Trustee to Rely on Officers’ Certificate, etc.
Subject
to Sections 5.01 and 5.02, 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
5.08. Persons
Eligible for Appointment as Trustee.
The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States
of
America or the District of Columbia having a combined capital and surplus of
at
least $25,000,000, 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
5.09. 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 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, 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 at the Issuer’s expense 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
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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 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 and to the Issuer the evidence provided for
in
Section 6.01 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 5.09 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 5.09 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 9.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall
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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
5.06.
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 5.09. 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.
Section
5.11. Merger,
Conversion, Consolidation or Succession to Business of Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 5.08, 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.
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ARTICLE
6.
CONCERNING
THE SECURITYHOLDERS
Section
6.01. 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 5.01 and 5.02) conclusive in favor of the Trustee
and
the Issuer, if made in the manner provided in this Article.
Section
6.02. Proof
of Execution of Instruments and of Holding of Securities; Record
Date.
Subject
to Sections 5.01 and 5.02, 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 6.01, 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
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
6.03. 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 none of
the
Issuer, the Trustee or 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
6.04. 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 a Responsible Officer of the Trustee actually 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
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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 5.01 and 5.02, 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
6.05. Right
of Revocation of Action Taken.
At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.01, 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 substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon
any
such Security. Any action taken by the Holders of the 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
7.
SUPPLEMENTAL
INDENTURES
Section
7.01. Supplemental
Indentures Without Consent of Securityholders.
The
Issuer, when authorized by a resolution of its Board (which resolutions may
provide general authorization for such action and may provide that the specific
terms of such action may be determined by officers of the Issuer authorized
thereby) 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 legal entity to the Issuer or successive
successions, and the assumption by the successor legal entity of the covenants,
agreements and obligations of the Issuer pursuant to Article 8;
(c) to
add to
the covenants of the Issuer such further covenants, restrictions, conditions
or
provisions as the Issuer and the Trustee shall consider to be for the protection
of the Holders of Securities, 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
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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 Issuer 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
2.01 and 2.03; and
(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 7.02.
Section
7.02. Supplemental
Indentures With Consent of Securityholders.
With the
consent (evidenced as provided in Article 6) 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 (which resolutions may
provide general authorization for such action and may provide that the specific
terms of such action may be determined by officers of the Issuer authorized
thereby), 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) (i) extend the final maturity of any
Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or
extend the time of payment of interest thereon, (iv) reduce any amount payable
on redemption thereof, (v) make the principal thereof (including any amount
in
respect of original issue discount), or interest thereon payable in any coin
or
currency other than that provided in the Securities or in accordance with the
terms thereof, (vi) modify or amend any provisions for converting any currency
into any other currency as provided in the Securities or in accordance with
the
terms thereof, (vii) 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 4.01 or the amount thereof provable in
bankruptcy pursuant to Section 4.02, (viii) modify or amend any provisions
relating to the conversion or exchange of the Securities for securities of
the
Issuer or of other entities or other property (or the cash value thereof),
including the determination of the amount of securities or other property (or
cash) into which the Securities shall be converted or exchanged, other than
as
provided in the antidilution provisions or other similar adjustment provisions
of the Securities or otherwise in
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accordance
with the terms thereof, or (ix) alter the provisions of Section 10.11 or Section
10.13 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, in each case 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.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of holders of Securities of such series, with respect to such covenant
or
provision, shall be deemed not to affect the rights under this Indenture of
the
holders of Securities of any other series.
Upon
the
request of the Issuer, accompanied by a copy of a resolution of the Board (which
resolutions may provide general authorization for such action and may provide
that the specific terms of such action may be determined by officers of the
Issuer authorized thereby) 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 6.01, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It
shall
not be necessary for the consent of the 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 Trustee shall give notice
thereof by (a) 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 or (b) by any other means set forth in such supplemental
indenture, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Trustee 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
7.03. 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
7.04. Documents
to Be Given to Trustee.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which adversely affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
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Section
7.05. 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 by
Securityholders. 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, 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.
ARTICLE
8.
CONSOLIDATION,
MERGER, SALE OR CONVEYANCE
Section
8.01. Issuer
May Consolidate, etc., on Certain Terms.
The
Issuer covenants that it will not merge or consolidate with any other Person
or
sell or convey all or substantially all of its assets to any Person, unless
(i)
either the Issuer shall be the continuing legal entity, or the successor legal
entity 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 conditions 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 successor legal entity, and (ii)
the Issuer or such successor legal entity, 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 condition.
Section
8.02. Successor
Substituted.
In case
of any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor legal entity, all in the manner described in Section
8.01, such successor legal entity shall succeed to and be substituted for the
Issuer, with the same effect as if it had been named herein. Such successor
legal entity 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 legal entity
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 legal entity 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. Any required changes in phrasing and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
In
the
event of such assumption following any sale or conveyance in accordance with
Section 8.01 and this Section 8.02 (other than a conveyance by way of lease)
the
Issuer (including any successor legal entity that has been further substituted
in accordance with Section 8.01 and this Section 8.02) shall be discharged
from
all obligations and covenants under this Indenture and the Securities and may
be
liquidated and dissolved.
Section
8.03. Reserved
Section
8.04. Reserved.
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Section
8.05. Opinion
of Counsel to Trustee.
The
Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive
an
Opinion of Counsel, prepared in accordance with Section 10.05, 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.
ARTICLE
9.
SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section
9.01. Satisfaction
and Discharge of Indenture.
(a) If
at any
time (i) 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 2.09) as and when the same
shall have become due and payable, or (ii) 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 2.09) or (iii) (A) 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 are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (B) 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 9.04) in the case of any series
of Securities the payments on which may only be made in United States dollars,
direct obligations of the United States of America, backed by its full faith
and
credit (“U.S. Government Obligations”), maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash, or
a
combination thereof, 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 2.09) 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 date therefor (but no upon acceleration), and remaining
rights of the holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of
them), 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.
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(b) The
following provisions shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officers’ Certificate or
indenture supplemental hereto provided pursuant to Section 2.03. In addition
to
discharge of the Indenture pursuant to the next preceding paragraph, in the
case
of any series of Securities the exact amounts (including the currency of
payment) of principal of and interest due on which can be determined at the
time
of making the deposit referred to in clause 9.01(b)(i) below, the Issuer shall
be deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series on the 91st day after the date of the deposit
referred to in clause 9.01(b)(i) below, and the provisions of this Indenture
with respect to the Securities of such series thereto shall no longer be in
effect (except as to (1) rights of registration of transfer and exchange of
Securities of such series and the Issuer’s right of optional redemption, if any,
(2) substitution of mutilated, defaced, destroyed, lost or stolen Securities,
(3) rights of Holders of Securities 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, (4) the rights, obligations, duties and immunities of
the
Trustee hereunder, (5) the rights of the Holders of Securities of such series
as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (6) the obligations of the Issuer under
Section 3.02) and the Trustee, at the expense of the Issuer shall at the
Issuer’s request, execute proper instruments acknowledging the same,
if:
(i) with
reference to this provision the Issuer has irrevocably deposited or caused
to be
irrevocably deposited with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders
of
the Securities of such series (A) cash in an amount, or (B) in the case of
any
series of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such times
and
in such amounts as will insure the availability of cash or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (1) the principal and interest on all
Securities of such series and coupons appertaining thereto on each date that
such principal or interest is due and payable and (2) any mandatory sinking
fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;
(ii) such
deposit will not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Issuer is a party or by which
it
is bound;
(iii) the
Issuer
has delivered to the Trustee an Opinion of Counsel based on the fact that (x)
the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there has been a change
in the applicable federal income tax law, in either case to the effect that,
and
such opinion shall confirm that, the Holders of the Securities of such series
and coupons appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and
in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(iv) the
Issuer
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for relating to the
defeasance contemplated by this provision have been complied with.
(c) The
Issuer
shall be released from its obligations under Section 8.01 with respect to the
Securities of any series, Outstanding, and under any guarantee in respect
thereof, on and after the date the conditions set forth below are satisfied
(hereinafter, “covenant defeasance”). For this purpose,
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such
covenant defeasance means that, with respect to the Outstanding Securities
of
any series, and under a guarantee in respect thereof, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in such Sections, whether directly or indirectly by reason
of any reference elsewhere herein to such Sections or by reason of any reference
in such Sections to any other provision herein or in any other document and
such
omission to comply shall not constitute an Event of Default under Section 4.01,
but the remainder of this Indenture and such Securities and coupons shall be
unaffected thereby. The following shall be the conditions to application of
this
subsection (c) of this Section 9.01:
(i) the
Issuer
has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the holders
of
the Securities of such series, (A) cash in an amount, or (B) in the case of
any
series of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times
and
in such amounts as will insure the availability of cash or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (1) the principal and interest on all
Securities of such series and coupons appertaining thereto and (2) any mandatory
sinking fund payments on the day on which such payments are due and payable
in
accordance with the terms of the Indenture and the Securities of such
series;
(ii) 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 shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 4.01(c) and
4.01(d) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period);
(iii) such
covenant defeasance shall not cause the Trustee to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any securities
of the Issuer;
(iv) such
covenant defeasance shall 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;
(v) such
covenant defeasance shall not cause any Securities then listed on any registered
national securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;
(vi) the
Issuer
shall have delivered to the Trustee an Officers’ Certificate and 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; and
(vii) 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
the
covenant defeasance contemplated by this provision have been complied
with.
Section
9.02. Application
by Trustee of Funds Deposited for Payment of Securities.
Subject
to Section 9.04 and any subordination provisions applicable to the Securities,
all moneys deposited with the Trustee pursuant to Section 9.01 shall be held
in
trust and applied by it to the payment, either
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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.
Section
9.03. 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
9.04. 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 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.
The
Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 9.01 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities.
ARTICLE
10.
MISCELLANEOUS
PROVISIONS
Section
10.01. Incorporators,
Stockholders, Members, 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 stockholder, member, 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 the
issue
of the Securities.
Section
10.02. 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, the holders of Senior Debt 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, the holders of Senior Debt and of the Holders of the
Securities.
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Section
10.03. 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.
Section
10.04. 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 is filed with the Trustee) as follows:
If
to the
Issuer:
Amarin
Corporation plc
▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇
Attention:
Chief Financial Officer
Fax:
with
copies to:
Amarin
Corporation plc
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇
Attention:
General Counsel
Fax:
▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
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 delivered in person or mailed by first-class mail to the
Trustee at
[ ],
Attention:
[ ].
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.
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In
case,
by reason of the suspension of or irregularities in regular mail service, it
shall be impracticable to mail notice to the Issuer or the 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
10.05. 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 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 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,
or in
the exercise of reasonable care should know that the same 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 or officers of the Issuer unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid
are
erroneous, or in the exercise of reasonable care should know that the same
are
erroneous.
Any
certificate, statement or opinion of an officer of the Issuer or of counsel
may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be
based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any
certificate or opinion of any independent firm of public accountants filed
with
the Trustee shall contain a statement that such firm is
independent.
Section
10.06. 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 effect 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.
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Section
10.07. 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
10.08. 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 governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflicts of law.
Section
10.09. 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.
Section
10.11. Securities
in a Non-U.S. Currency.
Unless
otherwise specified in an Officers’ Certificate delivered pursuant to Section
2.03 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars, then the principal amount
of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate
in
New York City for cable transfers of that currency as published by the Federal
Reserve Bank of New York. If such Market Exchange Rate is not available for
any
reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in The City of New York or in the country of issue
of the currency in question, or such other quotations as the Trustee shall
deem
appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated
in
a currency other than Dollars in connection with any action taken by Holders
of
Securities pursuant to the terms of this Indenture.
All
decisions and determinations of the Trustee regarding the Market Exchange Rate
or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Issuer and all Holders.
Section
10.12. Submission
to Jurisdiction.
The
Issuer agrees that any legal suit, action or proceeding arising out of or based
upon this Indenture may be instituted in any federal or state court sitting
in
New York City, and, to the fullest extent permitted by law, waives any objection
which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the jurisdiction of such court in any
suit, action or proceeding. The Issuer, as long as any of the Securities remain
Outstanding or the parties hereto have any obligation under this Indenture,
shall have an authorized agent (the “Authorized Agent”) in the United States
upon whom process may be served in any such legal action or proceeding. Service
of process upon such agent and written notice of such service mailed or
delivered to it shall to the extent permitted by law be deemed in every respect
effective service of process upon it in any such legal action or proceeding
and,
if it fails to maintain such agent, any such process or summons may be served
by
mailing a copy thereof by registered mail, or a form of mail substantially
equivalent
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thereto,
addressed to it at its address as provided for notices hereunder. The Issuer
hereby appoints ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director, ▇▇▇▇▇▇▇ &
Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as its agent for
such purposes, and covenants and agrees that service of process in any legal
action or proceeding may be made upon it at such office of such
agent.
Section
10.13. Judgment
Currency.
The
Issuer agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of or
interest on the Securities of any series (the “Required Currency”) into a
currency in which a judgment will be rendered (the “Judgment Currency”), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking
Day,
then, to the extent permitted by applicable law, the rate of exchange used
shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture
to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in
the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other
sum due under this Indenture. For purposes of the foregoing, “New York Banking
Day” means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
ARTICLE
11.
REDEMPTION
OF SECURITIES AND SINKING FUNDS
Section
11.01. 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 2.03 for Securities of such series.
Section
11.02. 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
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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.
On
or
before the redemption date specified in the notice of redemption given as
provided in this Section, the Issuer will deposit with the Trustee or with
one
or more paying agents (or, if the Issuer is acting as its own paying agent,
set
aside, segregate and hold in trust as provided in Section 3.04) an amount of
money or other property 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 70 days prior to the date fixed for
redemption an Officers’ Certificate stating the aggregate principal amount of
Securities to be redeemed.
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
11.03. 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 5.05 and 9.04, 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 Sections
2.03 and 2.04 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 redemp-
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tion
at
the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such 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
11.04. 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 as directly or indirectly controlling or controlled
by
or under direct or indirect common control with the Issuer.
Section
11.05. Mandatory
and Optional Sinking Funds.
The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the
terms of 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 2.07, (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 sixtieth 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 10.05) 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 sixtieth day, to
deliver such written statement and Securities specified in
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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 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 11.02,
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 11.02 (and with the effect
provided in Section 11.03) 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.
On
or
before each sinking fund payment date, the Issuer shall pay to the Trustee
in
cash or shall otherwise provide for the payment of all interest accrued to
the
date fixed for redemption on Securities to be redeemed on 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 give 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 4 and held for the payment of all such Securities.
In
case such Event of Default shall have been waived as provided in Section 4.09
or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereaf-
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ter
be
applied on the next succeeding sinking fund payment date in accordance with
this
Section to the redemption of such Securities.
ARTICLE
12.
RESERVED
ARTICLE
13.
SUBORDINATION
OF SECURITIES
Section
13.01. Agreement
to Subordinate.
The
Issuer covenants and agrees, and each Holder of a Security issued hereunder
by
his acceptance thereof likewise covenants and agrees, that all Securities shall
be issued subject to the provisions of this Article; and each person holding
any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the principal of (and premium, if any) and
interest on all Securities issued hereunder shall, to the extent and in the
manner set forth herein, subject to any modifications or additional terms set
forth in any applicable supplemental indenture, be subordinated and subject
in
right to the prior payment in full of all Senior Debt.
Section
13.02. Payments
to Holders of Securities
.
In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in
connection therewith, relative to the Issuer or to its creditors, as such,
or to
its assets, or (b) any liquidation, dissolution or other winding up of the
Issuer, whether voluntary or involuntary and whether or not involving insolvency
or bankruptcy, and (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Issuer, then and in any such event
the holders of Senior Debt shall be entitled to receive payment in full of
all
amounts due or to become due on or in respect of all Senior Debt (including
any
interest accruing thereon after the commencement of any such case or
proceeding), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt,
before the Holders of the Securities are entitled to receive any payment on
account of principal of (or premium, if any) or interest on the Securities,
and
to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind
or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment
of
any other indebtedness of the Issuer being subordinated to the payment of the
Securities, which may be payable or deliverable in respect of the Securities
in
any such case, proceeding, dissolution or other winding up event.
In
the
event that, notwithstanding the foregoing provisions of this Section, the
Trustee or the Holder of any Security shall have received any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may
be
payable or deliverable by reason of the payment of any other indebtedness of
the
Issuer being subordinated to the payment of the Securities, before all Senior
Debt is paid in full or payment thereof provided for, and if such fact shall,
at
or prior to the time of such payment or distribution, have been made known
to
the Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Issuer for
application to the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
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For
purposes of this Article only, 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 or other entity
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Debt which may at the time be outstanding
to
substantially the same extent as, or to a greater extent than, the Securities
are pursuant to the provisions in this Article. The consolidation of the Issuer
with, or the merger of the Issuer into, another legal entity 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 legal
entity upon the terms and conditions provided in Article 8 shall not be deemed
a
dissolution, winding-up, liquidation or reorganization for the purposes of
this
section if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
8.
Section
13.03. No
Payment When Senior Debt Is in Default.
Subject
to the last paragraph of this Section, (a) in the event and during the
continuation of any default in the payment of principal of (or premium, if
any)
or interest on any Senior Debt beyond any applicable grace period with respect
thereto (but not if such default in payment shall have been cured or waived
or
shall have ceased to exist), or (b) in the event that the holders of such Senior
Debt (or a trustee on behalf of the holders thereof) have declared such Senior
Debt due and payable prior to the date on which it would otherwise have become
due and payable by reason of an event of default (but not if such declaration
of
acceleration shall have been rescinded or annulled), then no payment (including
any payment which may be payable by reason of the payment of any other
indebtedness of the Issuer being subordinated to the payment of the Securities)
shall be made by the Issuer on account of principal of (or premium, if any)
or
interest on the Securities or on account of the purchase or other acquisition
of
Securities, other than pursuant to their conversion, if any; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking
fund
payment in accordance with Article 11 by delivering and crediting pursuant
to
Section 11.05 Securities which have been acquired (upon redemption or otherwise)
prior to such default in payment.
In
the
event that, notwithstanding the foregoing, the Issuer shall make any payment
to
the Trustee or the Holder of any Security prohibited by the provisions of this
Section, and if such fact shall, at or prior to the time of such payment, have
been made known to the Trustee or, as the case may be, such Holder, then and
in
such event such payment shall be paid over and delivered forthwith to the
Issuer.
Section
13.04. Payment
Permitted in Certain Situations.
Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Issuer, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Issuer referred to in Section 13.02 or under the conditions
described in Section 13.03, from making payments at any time of or on account
of
the principal of (and premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this
Article.
Section
13.05. Subrogation
to Rights of Holders of Senior Debt.
Subject
to the payment in full of all Senior Debt or the provision for such payment
in
cash or cash equivalents or otherwise in a manner satisfactory to the holders
of
Senior Debt, the Holders of the Securities shall be subrogated to the extent
of
the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article (equally and ratably with the holders of
indebtedness of the Issuer which by its express terms is subordinated to the
indebtedness of the Issuer, to substantially the same extent as the Securities
are subordinated to the Senior Debt and is entitled to like rights of
-46-
subrogation)
to the rights of the holders of such Senior Debt to receive payments and
distributions of cash, property and securities applicable to the Senior Debt
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Issuer, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Issuer to or on account of
the
Senior Debt.
Section
13.06. Provisions
Solely to Define Relative Rights.
The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to
or
shall (a) impair, as among the Issuer, its creditors other than holders of
Senior Debt 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 (b)
affect the relative rights against the Issuer of the Holders of the Securities
and creditors of the Issuer other than the holders of Senior Debt; or (c)
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 of the holders of Senior Debt to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section
13.07. Trustee
to Effectuate Subordination.
Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section
13.08. No
Waiver of Subordination Provisions.
No right
of any present or future holder of any Senior Debt to enforce subordination
as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to
act,
in good faith, by any such holder, or by any non compliance by the Issuer with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged
with.
Section
13.09. Notice
to Trustee.
The
Issuer shall give prompt written notice to the Trustee of any fact known to
the
Issuer which would prohibit the making of any payment to or by the Trustee
in
respect of the Securities. Notwithstanding the provisions of this Article 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 to or by the Trustee in respect of the Securities, unless and until
the
Trustee shall have received written notice thereof from the Issuer or a holder
of Senior Debt or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 5.01,
shall be entitled in all respects to assume that no such facts
exist.
Subject
to
the provisions of Section 5.01, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Debt (or a trustee therefor) to establish that such notice
has
been given by a holder of Senior Debt (or a trustee therefor). In the event
that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate
in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
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Trustee
as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section
13.10. Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon any
payment or distribution of assets of the Issuer, the Trustee, subject to the
provisions of Section 5.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount
or
amounts paid or distributed thereon and all other facts pertinent thereto or
to
this Article.
Section
13.11. Trustee
Not Fiduciary for Holders of Senior Debt.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders or creditors if it shall in
good faith pay over or distribute to Holders of Securities or to the Issuer
or
to any other Person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise.
Section
13.12. Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article with respect to any Senior Debt which may at any time be held
by
it, to the same extent as any other holder of Senior Debt and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing
in
this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 5.06.
Section
13.13. Article
Applicable to Paying Agents.
In case
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 in such case (unless the context otherwise requires) be construed
as extending to and including such paying agent within its meaning as fully
for
all intents and purposes as if such paying agent were named in this Article
in
addition to or in place of the Trustee.
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IN
WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed
as of
_____________, ____.
EXECUTED
AND DELIVERED
AS
A DEED
BY
AMARIN
CORPORATION PLC,
AS
ISSUER,
ACTING BY,
By: _________________________________________
Name:
Title:
Director
By: _________________________________________
Name:
Title:
Director/Company Secretary
[ ],
AS
TRUSTEE
By: _________________________________________