<PAGE>
EXHIBIT 4.1
CURAGEN CORPORATION
Issuer
AND
[ ] ,
Trustee
INDENTURE
Dated as of [ ], 2000
Senior Debt Securities
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CROSS-REFERENCE TABLE (1)
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Section of
Trust Indenture Act Section of
Of 1939, as Amended Indenture
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310(a)............................................... 7.09
310(b)............................................... 7.08
7.10
310(c). Inapplicable
311(a). 7.13(a)
311(b). 7.13(b)
311(c). Inapplicable
312(a). 5.02(a)
312(b). 5.02(b)
312(c). 5.02(c)
313(a). 5.04(a)
313(b). 5.04(b)
313(c). 5.04(a)
5.04(b)
313(d). 5.04(c)
314(a)............................................... 5.03
314(b). Inapplicable
314(c)............................................... 13.06
314(d). Inapplicable
314(e)............................................... 13.06
314(f). Inapplicable
315(a). 7.01(a)
7.02
315(b)............................................... 6.07
315(c)............................................... 7.01
315(d). 7.01(b)
7.01(c)
315(e)............................................... 6.07
316(a)............................................... 6.06
8.04
316(b)............................................... 6.04
316(c)............................................... 8.01
317(a)............................................... 6.02
317(b)............................................... 4.03
318(a)............................................... 13.08
</TABLE>
(1) This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
ii
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TABLE OF CONTENTS (2)
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ARTICLE I DEFINITIONS. 1
SECTION 1.01 Definitions of Terms 1
ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES. 5
SECTION 2.01 Designation and Terms of Securities................................................... 5
SECTION 2.02 Form of Securities and Trustee's Certificate.......................................... 7
SECTION 2.03 Denominations: Provisions for Payment............................................... 7
SECTION 2.04 Execution and Authentications......................................................... 9
SECTION 2.05 Registration of Transfer and Exchange................................................. 10
SECTION 2.06 Temporary Securities.................................................................. 11
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities....................................... 11
SECTION 2.08 Cancellation.......................................................................... 12
SECTION 2.09 Benefits of Indenture................................................................. 12
SECTION 2.10 Authenticating Agent.................................................................. 12
SECTION 2.11 Global Securities..................................................................... 13
ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS......................................... 14
SECTION 3.01 Redemption............................................................................ 14
SECTION 3.02 Notice of Redemption.................................................................. 14
SECTION 3.03 Payment Upon Redemption............................................................... 15
SECTION 3.04 Sinking Fund.......................................................................... 16
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities................................. 16
SECTION 3.06 Redemption of Securities for Sinking Fund............................................. 16
ARTICLE IV COVENANTS.................................................................................... 17
SECTION 4.01 Payment of Principal, Premium and Interest............................................ 17
SECTION 4.02 Maintenance of Office or Agency....................................................... 17
SECTION 4.03 Paying Agents......................................................................... 17
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee...................................... 18
SECTION 4.05 Compliance with Consolidation Provisions.............................................. 19
ARTICLE V SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE.................................................................. 19
SECTION 5.01 Company to Furnish Trustee Names and Addresses of Securityholders..................... 19
SECTION 5.02 Preservation Of Information; Communications With Securityholders...................... 19
SECTION 5.03 Reports by the Company................................................................ 19
SECTION 5.04 Reports by the Trustee................................................................ 20
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.......................................................................... 21
SECTION 6.01 Events of Default..................................................................... 21
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SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee....................... 22
SECTION 6.03 Application of Moneys Collected....................................................... 24
SECTION 6.04 Limitation on Suits................................................................... 24
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.......................... 25
SECTION 6.06 Control by Securityholders............................................................ 25
SECTION 6.07 Undertaking to Pay Costs.............................................................. 26
ARTICLE VII CONCERNING THE TRUSTEE....................................................................... 26
SECTION 7.01 Certain Duties and Responsibilities of Trustee........................................ 26
SECTION 7.02 Certain Rights of Trustee............................................................. 27
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or Securities........................ 29
SECTION 7.04 May Hold Securities................................................................... 29
SECTION 7.05 Moneys Held in Trust.................................................................. 29
SECTION 7.06 Compensation and Reimbursement........................................................ 29
SECTION 7.07 Reliance on Officers' Certificate..................................................... 30
SECTION 7.08 Disqualification; Conflicting Interests............................................... 30
SECTION 7.09 Corporate Trustee Required; Eligibility............................................... 30
SECTION 7.10 Resignation and Removal; Appointment of Successor..................................... 31
SECTION 7.11 Acceptance of Appointment By Successor................................................ 32
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business........................... 33
SECTION 7.13 Preferential Collection of Claims Against the Company................................. 33
ARTICLE VIII CONCERNING THE SECURITYHOLDERS............................................................... 34
SECTION 8.01 Evidence of Action by Securityholders................................................. 34
SECTION 8.02 Proof of Execution by Securityholders................................................. 34
SECTION 8.03 Who May be Deemed Owners.............................................................. 35
SECTION 8.04 Certain Securities Owned by Company Disregarded....................................... 35
SECTION 8.05 Actions Binding on Future Securityholders............................................. 35
ARTICLE IX SUPPLEMENTAL INDENTURES...................................................................... 36
SECTION 9.01 Supplemental Indentures Without the Consent of Securityholders..................... 36
SECTION 9.02 Supplemental Indentures With Consent of Securityholders............................... 37
SECTION 9.03 Effect of Supplemental Indentures..................................................... 37
SECTION 9.04 Securities Affected by Supplemental Indentures........................................ 38
SECTION 9.05 Execution of Supplemental Indentures.................................................. 38
ARTICLE X SUCCESSOR ENTITY............................................................................. 38
SECTION 10.01 Company May Consolidate, Etc.......................................................... 38
SECTION 10.02 Successor Entity Substituted.......................................................... 39
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee............................................ 39
ARTICLE XI SATISFACTION AND DISCHARGE................................................................... 40
SECTION 11.01 Satisfaction and Discharge of Indenture............................................... 40
SECTION 11.02 Discharge of Obligations.............................................................. 40
SECTION 11.03 Deposited Moneys to be Held in Trust.................................................. 41
SECTION 11.04 Payment of Moneys Held by Paying Agents............................................... 41
SECTION 11.05 Repayment to Company.................................................................. 41
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ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS....................................................................... 41
SECTION 12.01 No Recourse........................................................................... 41
ARTICLE XIII MISCELLANEOUS PROVISIONS..................................................................... 42
SECTION 13.01 Effect on Successors and Assigns...................................................... 42
SECTION 13.02 Actions by Successor.................................................................. 42
SECTION 13.03 Surrender of Company Powers........................................................... 42
SECTION 13.04 Notices............................................................................... 42
SECTION 13.05 Governing Law......................................................................... 43
SECTION 13.06 Treatment of Securities as Debt....................................................... 43
SECTION 13.07 Compliance Certificates and Opinions.................................................. 43
SECTION 13.08 Payments on Business Days............................................................. 43
SECTION 13.09 Conflict with Trust Indenture Act..................................................... 43
SECTION 13.10 Counterparts.......................................................................... 44
SECTION 13.11 Separability.......................................................................... 44
SECTION 13.12 Assignment............................................................................ 44
</TABLE>
(2) This Table of Contents does not constitute part of the Indenture and shall
not have any bearing on the interpretation of any of its terms or provisions.
v
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INDENTURE, dated as of [ ], 2000, among CuraGen Corporation, a Delaware
corporation (the "Company"), and [ ], as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the issuance of
unsecured debt securities (hereinafter referred to as the "Securities"), in an
unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided, as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, as amended, or that are by reference in such
Act defined in the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise 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 the execution of this instrument.
"Authenticating Agent" means an authenticating agent with respect to all or any
of the series of Securities appointed with respect to all or any series of the
Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law
for the relief of debtors.
<PAGE>
"Board of Directors" means the Board of Directors of the Company or any duly
authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
"Business Day" means, with respect to any series of Securities, any day other
than a day on which Federal or State banking institutions in the Borough of
Manhattan, The City of New York, are authorized or obligated by law, executive
order or regulation to close.
"Certificate" means a certificate signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company.
The Certificate need not comply with the provisions of Section 13.07.
"Company" means CuraGen Corporation, a corporation duly organized and existing
under the laws of the State of Delaware, and, subject to the provisions of
Article Ten, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at [ ], except that whenever a
provision herein refers to an office or agency of the Trustee in the Borough of
Manhattan, The City of New York, such office is located, at the date hereof, at
[ ].
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or lapse of time,
or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular series any
event specified in Section 6.01, continued for the period of time, if any,
therein designated.
"Global Security" means, with respect to any series of Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's
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instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct obligations of
the United States of America for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"Indenture" means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of interest
on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to
such series as the fixed date on which an installment of interest with respect
to Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Controller or an
Assistant Controller or the Secretary or an Assistant Secretary of the Company
that is delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may be an
employee of or counsel for the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions
thereof.
"Outstanding", when used with reference to Securities of any series, means,
subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore
3
<PAGE>
canceled by the Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or that have previously been canceled; (b)
Securities or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07.
"Person" means any individual, corporation, partnership, joint-venture, joint-
stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Responsible Officer" when used with respect to the Trustee means the Chairman
of the Board of Directors, the President, any Vice President, the Secretary, the
Treasurer, any trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Securities" means the debt Securities authenticated and delivered under this
Indenture.
"Securityholder", "holder of Securities", "registered holder", or other similar
term, means the Person or Persons in whose name or names a particular Security
shall be registered on the books of the Company kept for that purpose in
accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner.
"Trustee" means [ ], and, subject to the provisions of Article Seven, shall also
include its successors and assigns, and, if at any time there is more than one
Person acting in
4
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such capacity hereunder, "Trustee" shall mean each such Person. The term
"Trustee" as used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, subject
to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date of
execution of this instrument.
"Voting Stock", as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be
issued in one or more series up to the aggregate principal amount of
Securities of that series from time to time authorized by or pursuant to a
Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Securities of any
series, there shall be established in or pursuant to a Board Resolution of
the Company, and set forth in an Officers' Certificate of the Company, or
established in one or more indentures supplemental hereto:
(1) the title of the Security of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of that
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 that series);
(3) the date or dates on which the principal of the Securities of the
series is payable and the place(s) of payment;
(4) the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
5
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(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates, the place(s)
of payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the period or periods within which, the price or prices at 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 Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in satisfaction of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the
terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form of the Securities of the series including the form of
the Certificate of Authentication for such series;
(10) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as amended
by any supplemental indenture) including any terms which may be
required by or advisable under United States laws or regulations or
advisable in connection with the marketing of Securities of that
series;
(12) whether the Securities are issuable as a Global Security and, in
such case, the identity of the Depositary for such series;
(13) whether the Securities will be convertible into shares of common
stock or other securities of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible,
including the conversion price and the conversion period;
(14) 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 6.01; and
6
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(15) any additional or different Events of Default or restrictive covenants
provided for with respect to the Securities of the 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 any such
Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a
Board Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of authentication to
be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a
Board Resolution of the Company and as set forth in an Officers' Certificate of
the Company and the and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Securities of that series
may be listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(10). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United States of
America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall be dated the date
of its authentication. Interest on the Securities shall be computed on the basis
of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually paid
or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the
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Person in whose name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such interest
installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation
and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same series
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the
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fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject to the foregoing provisions of this Section, each Security of a series
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security of such series shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its President, or one
of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or
its Secretary, or one of its Assistant Secretaries, under its corporate seal
attested by its Secretary or one of its Assistant Secretaries. Signatures may be
in the form of a manual or facsimile signature. The Company may use the
facsimile signature of any Person who shall have been a President or Vice
President thereof, or of any Person who shall have been a Secretary or Assistant
Secretary thereof, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such Person shall have
ceased to be the President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature 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. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such
Securities, signed by its President or any Vice President and its Secretary or
any Assistant Secretary, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
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 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities
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under the Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in the
Borough of Manhattan, the City and State of New York, for other Securities
of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of
the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as
in this Article provided and which at all reasonable times shall be open
for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall
be appointed as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or agency of the
Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder's duly authorized attorney
in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b)
and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register
the transfer of any Securities during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption
of less than all the Outstanding Securities of the same series
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and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security of any series shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities of such series. Without unnecessary delay the Company will
execute and will furnish definitive Securities of such series and thereupon any
or all temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, the City and State of
New York, and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities of such series, unless the Company advises the
Trustee to the effect that definitive Securities need not be executed and
furnished until further notice from the Company. Until so exchanged, the
temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and
delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company's request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
the applicant's Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the written
request or authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Security that has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case
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of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this Section
shall constitute an additional contractual obligation of the Company whether or
not the mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) 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 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent, 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 required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee. In
the absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities,
however, 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 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give
or be construed to give to any Person, other than the parties hereto and the
holders of the Securities any legal or equitable right, remedy or claim under or
in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the holders of the Securities.
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there may be
an Authenticating Agent for any or all such series of Securities which the
Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption
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thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with
Section 2.04, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee,
(iii) shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part,
only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global Security of
a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as Depositary for
such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such
series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such
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condition, as the case may be, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to
Section 2.05, the Trustee will authenticate and deliver the Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder on and
after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series in
accordance with the right reserved so to do, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more
than 90 days before the date fixed for redemption of that series to such
holders at their last addresses as they shall appear upon the Security
Register unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of
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such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for redemption and
the redemption price at which Securities of that series are to be redeemed, and
shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the Borough of
Manhattan, the City and State of New York, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in whole or in part
shall specify the particular Securities to be so redeemed. In case any Security
is to be redeemed in part only, the notice that relates to such Security shall
state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, 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.
(b) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of
Securities of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion
or portions (equal to one thousand U.S. dollars ($1,000) or any integral
multiple thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Securities to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect, by delivery of instructions signed on its
behalf by its President or any Vice President, instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set
forth in this Section, such notice to be in the name of the Company or its
own name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or any
such paying agent, the Company shall deliver or cause to be delivered to,
or permit to remain with, the Trustee or such paying agent, as the case
may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under
the provisions of this Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the series to
be redeemed 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
interest on such Securities or portions of Securities shall cease to
accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest
with respect to any such Security or portion thereof. On presentation and
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surrender of such Securities on or after the date fixed for redemption at the
place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if the date fixed
for redemption is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of business on
the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented
shall deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and (ii) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next
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ensuing sinking fund payment for that series pursuant to the terms of the
series, the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers' Certificate, deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.02 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal of
(and premium, if any) and interest on the Securities of that series at the time
and place and in the manner provided herein and established with respect to such
Securities.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company agrees
to maintain an office or agency in the Borough of Manhattan, the City and State
of New York, with respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.02, where (i)
Securities of that series may be presented for payment, (ii) Securities of that
series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Vice President and
delivered to the trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and demands.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will cause
each 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:
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(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or
any failure (by it or any other obligor on such Securities) to take such
action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series,
deposit with the paying agent a sum sufficient to pay the principal (an
premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.05, and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying agent, such
sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and,
upon such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
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SECTION 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the
Company is not the survivor of such transaction, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) on each
regular record date (as defined in Section 2.03) a list, in such form as the
Trustee may reasonably require, of the names and addresses of the holders of
each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders
of Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
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(a) The Company covenants and agrees to file with the Trustee, within 15
days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Securityholders, as their names and
addresses appear upon the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04 Reports by the Trustee.
(a) On or before [ ] in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register, a brief report dated as of the preceding [ ], if
and to the extent required under Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with
the Commission. The Company agrees to notify the Trustee when any
Securities become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular
series, "Event of Default" means any one or more of the following events
that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Securities of that series, as and when the
same shall become due and payable, and continuance of such default
for a period of 90 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the
terms of any indenture supplemental hereto shall not constitute a
default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that
series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of
principal or premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series
of Securities pursuant to Section 2.01 hereof (other than a covenant
or agreement that has been expressly included in this Indenture
solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied
and stating that such notice is a "Notice of Default" hereunder,
shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Securities of that series
at the time Outstanding;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents
to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the
benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all
or substantially all of its property, or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(b) In each and every such case, unless the principal of all the
Securities of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25%
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in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of all the Securities of that
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable.
(c) At any time after the principal of the Securities of that series 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 holders of a majority in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal of (and
premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest,
at the rate per annum expressed in the Securities of that series to the
date of such payment or deposit) and the amount payable to the Trustee
under Section 7.06, and (ii) any and all Events of Default under the
Indenture with respect to such series, other than the nonpayment of
principal on Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in Section
6.06.
No such rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case, subject
to any determination in such proceedings, the Company, and the Trustee
shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the
Trustee shall continue as though no such proceedings had been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that (1) in case it shall default in the payment
of any installment of interest on any of the Securities of a series, or
any payment required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 Business
Days, or (2) in case it shall default in the payment of the principal of
(or premium, if any, on) any of the Securities of a series when the same
shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise, then,
upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole amount
that then shall have been become due and payable on all such Securities
for principal (and premium, if any) or interest, or both, as the case may
be, with interest upon the overdue principal (and premium, if any) and (to
the extent that
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payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the Securities of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith 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 proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the Company or other
obligor upon the Securities of that series and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property
of the Company or other obligor upon the Securities of that series,
wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affected the Company, or its creditors or property, the
Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that
series, may be enforced by the Trustee without the possession of any of
such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, 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 the 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.
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Nothing contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of that 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.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with respect to a
particular series of Securities 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 premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all amounts
payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon Securities of
such series for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 6.04 Limitation on Suits.
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 suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or holders
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 (iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other provisions
of this Indenture, the right of any holder of any Security to receive payment of
the principal of (and premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such Security (or in
the case of redemption, on the redemption date), or to
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institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder and by accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder of every Security of
such series with every other such taker and holder and the Trustee, that no one
or more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
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 such 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 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies
given by this Article to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities 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 default or on
acquiescence therein; and, subject to the provisions of Section 6.04,
every power and remedy given by this Article or by law to the Trustee or
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 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding, determined in accordance with Section 8.01,
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 such series; provided, however,
that such direction shall not be in conflict with any rule of law or with this
Indenture or be unduly prejudicial to the rights of holders of Securities of any
other series at the time Outstanding determined in accordance with Section 8.01.
Subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding affected thereby, determined in accordance with Section 8.01,
may on behalf of the holders of all of the Securities of such series waive any
past default in the performance of any of the covenants
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contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal
of, or premium, if any, or interest on, any of the Securities of that series as
and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities
of such series 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.
SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities by such
holder's 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 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, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have
occurred, shall undertake to perform with respect to the Securities of
such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
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(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have
occurred:
(i) the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely
by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such
series 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 with respect to the Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that 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
requirement of this Indenture;
(2) 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;
(3) 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 of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
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 with respect
to the Securities of that series; and
(4) 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 is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
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(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, 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 Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company, by the President or any Vice
President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer thereof (unless other evidence in respect
thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted
hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company 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 and the Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities.
(a) The recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or
for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any
paying agent other than the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, 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 Trustee, paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, 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 law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company, and the Trustee may from
time to time agree in writing, for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee, and, except as
otherwise expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee 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 Persons not
regularly in its employ) except any such expense, disbursement or
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advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior
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.
SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions 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 to take 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 to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as
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Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such
series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may 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 one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section 7.08
after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Security or Securities for at least six
months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, 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 Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, unless the Trustee's duty to
resign is stayed as provided herein, any Securityholder who has been
a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor
trustee.
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(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and
the Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates, (2) shall contain
such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on
the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall
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become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time
of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days
after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be transmitted at the expense of the
Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, 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 any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the Company.
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The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Securities of a
particular series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such
majority or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the Outstanding Securities of that series shall be
computed as of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization) or
his agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
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(2) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security
Registrar thereof.
(3) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the Person in whose name such Security shall be registered upon the books
of the Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.03) interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal amount
of Securities of a particular series have concurred in any direction, consent of
waiver under this Indenture, the Securities of that series that are owned by the
Company or any other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common control with
the Company or any other obligor on the Securities of that series 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 of such series that the Trustee actually knows are so owned shall be
so disregarded. The Securities so owned that have been pledged in good faith may
be regarded as Outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the holders of the majority or
percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action, any holder of
a Security of that series that is shown by the evidence to be included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in
Section 8.02, revoke
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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
Security issued in exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in regard thereto is
made upon such Security. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in the
Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to add to the covenants of the Company for the benefit of the holders
of all or any Series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(e) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in Section 2.01, to
establish the form of any certifications
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required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of
Securities.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that 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 by the Company and the Trustee without the consent of the holders of
any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of
each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) 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 not covered by
Section 9.01 the rights of the holders of the Securities of such series under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any series
affected thereby 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.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article or of Section 10.01, this Indenture shall, with respect to such
series, 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 Company and the holders of Securities
of the 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.
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SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a notation in form
approved by the Company, provided such form meets the requirements of any
exchange upon which such series may be listed, as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
of that series so modified as to conform, in the opinion of the Board of
Directors of the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of that series then
Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company 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. The Trustee, subject to the
provisions of Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not be
provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Trustee shall transmit
by mail, first class postage prepaid, a notice, setting forth in general terms
the substance of such supplemental indenture, to the Securityholders of all
series affected thereby as their names and addresses appear upon the Security
Register. 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.
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Company with or into any other Person
(whether or not affiliated
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with the Company) or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety,
to any other corporation (whether or not affiliated with the Company or its
successor or successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the survivor of
such transaction), sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (premium, if any) and interest on all of
the Securities of all series in accordance with the terms of each series,
according to their tenor and the due and punctual performance and observance of
all the covenants and conditions of this Indenture with respect to each series
or established with respect to such series pursuant to Section 2.01 to be kept
or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as
then in effect) satisfactory in form to the Trustee executed and delivered to
the Trustee by the entity formed by such consolidation, or into which the
Company shall have been merged, or by the entity which shall have acquired such
property.
SECTION 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor entity by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of
the principal of, premium, if any, and interest on all of the Securities
of all series Outstanding and the due and punctual performance of all of
the covenants and conditions of this Indenture or established with respect
to each series of the Securities pursuant to Section 2.01 to be performed
by the Company with respect to each series, such successor entity shall
succeed to and be substituted for the Company with the same effect as if
it had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Article shall require any action by the
Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the
acquisition by the Company, by purchase or otherwise, of all or any part
of the property of any other Person (whether or not affiliated with the
Company).
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
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ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than
any Securities that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 11.05); or (b)
all such Securities of a particular 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 the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations sufficient or 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 at
maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
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SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant to
Sections 11.01 or 11.02 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture all moneys
or Governmental Obligations then held by any paying agent under the provisions
of this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent or the
Trustee, or then held by the Company, in trust for payment of principal of or
premium or interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company on May 31 of each year or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and
the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any
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predecessor or successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance
of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the time be the
lawful successor of the Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly provided herein any notice or demand that 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 Company may be given or
served by being deposited first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the Company with the
Trustee), as follows: [ ]. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
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SECTION 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made under the
internal laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State.
SECTION 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not as
equity for federal income tax purposes. The provisions of this Indenture shall
be interpreted to further this intention.
SECTION 13.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company,
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.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of
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 (4) a statement as to
whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
SECTION 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and
as set forth in an Officers' Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 13.09 Conflict with Trust Indenture Act.
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If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 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 13.11 Separability.
In case any one or more of the provisions contained in this Indenture or in the
Securities of any series shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly-owned Subsidiary
of the Company, provided that, in the event of any such assignment, the Company,
will remain liable for all such obligations. Subject to the foregoing, the
Indenture is binding upon and inures to the benefit of the parties thereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed all as of the day and year first above written.
CURAGEN CORPORATION
By:
---
Name: Title:
[ ],
as Trustee
By:
---
Name:
Title:
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