Exhibit 4.7
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WADDELL & REED FINANCIAL, INC.
AND
[__________________________________]
AS TRUSTEE
INDENTURE
DATED AS OF __________, 2000
SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS...............................................1
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.....................11
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE...................12
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES............................13
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY....................15
SECTION 1.6 NOTICE TO HOLDERS; WAIVER. ..............................16
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT........................16
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.................16
SECTION 1.9 SUCCESSORS AND ASSIGNS...................................16
SECTION 1.10 SEPARABILITY CLAUSE......................................17
SECTION 1.11 BENEFITS OF INDENTURE. ..................................17
SECTION 1.12 GOVERNING LAW. ..........................................17
SECTION 1.13 LEGAL HOLIDAYS...........................................17
SECTION 1.14 INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS....17
SECTION 1.15 INDENTURE MAY BE EXECUTED IN COUNTERPARTS................18
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY..........................................18
SECTION 2.2 FORM OF LEGEND FOR GLOBAL SECURITIES.....................19
SECTION 2.3 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..........19
SECTION 2.4 FORM OF CONVERSION NOTICE................................19
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.....................21
SECTION 3.2 DENOMINATIONS............................................25
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING...........25
SECTION 3.4 TEMPORARY SECURITIES.....................................27
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE......27
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.........30
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...........31
SECTION 3.8 PERSONS DEEMED OWNERS....................................32
SECTION 3.9 CANCELLATION.............................................33
SECTION 3.10 COMPUTATION OF INTEREST..................................33
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE..................33
SECTION 4.2 APPLICATION OF TRUST MONEY...............................35
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT........................................36
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.......37
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.................................39
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.........................39
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES..........................................40
SECTION 5.6 APPLICATION OF MONEY COLLECTED...........................40
SECTION 5.7 LIMITATION ON SUITS......................................41
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST AND TO CONVERT.........42
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.......................42
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE...........................42
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.............................42
SECTION 5.12 CONTROL BY HOLDERS.......................................43
SECTION 5.13 WAIVER OF PAST DEFAULTS. ................................43
SECTION 5.14 UNDERTAKING FOR COSTS....................................44
SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS..................44
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES......................44
SECTION 6.2 NOTICE OF DEFAULTS.......................................45
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE................................45
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...46
SECTION 6.5 MAY HOLD SECURITIES AND ACT AS TRUSTEE
UNDER OTHER INDENTURES.................................46
SECTION 6.6 MONEY HELD IN TRUST......................................47
SECTION 6.7 COMPENSATION AND REIMBURSEMENT...........................47
SECTION 6.8 CONFLICTING INTERESTS....................................48
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..................48
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........48
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...................50
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS............................................51
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........51
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT......................52
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS...................................54
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS...54
SECTION 7.3 REPORTS BY TRUSTEE.......................................54
SECTION 7.4 REPORTS BY COMPANY.......................................55
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.....55
SECTION 8.2 SUCCESSOR SUBSTITUTED....................................56
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS.............................................57
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS. ..............................................59
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.....................60
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES........................60
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT......................60
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.............................................61
SECTION 9.7 SUBORDINATION UNIMPAIRED.................................61
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST..............61
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.........................61
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.......62
SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.....................63
SECTION 10.5 EXISTENCE...............................................64
SECTION 10.6 WAIVER OF CERTAIN COVENANTS.............................64
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE................................64
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE...................64
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.......65
SECTION 11.4 NOTICE OF REDEMPTION....................................66
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.............................67
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE...................67
SECTION 11.7 SECURITIES REDEEMED IN PART.............................68
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE................................68
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES............................................68
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND...............69
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE...................................69
SECTION 13.2 DEFEASANCE AND DISCHARGE................................70
SECTION 13.3 COVENANT DEFEASANCE.....................................70
SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.........71
SECTION 13.5 DEPOSITED MONEY AND US GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS...............74
SECTION 13.6 REINSTATEMENT...........................................74
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 APPLICABILITY OF ARTICLE................................75
SECTION 14.2 EXERCISE OF CONVERSION PRIVILEGE........................75
SECTION 14.3 NO FRACTIONAL SHARES....................................76
SECTION 14.4 ADJUSTMENT OF CONVERSION PRICE..........................77
SECTION 14.5 NOTICE OF CERTAIN CORPORATE ACTIONS.....................77
SECTION 14.6 RESERVATION OF SHARES OF COMMON STOCK...................79
SECTION 14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION................79
SECTION 14.8 NONASSESSABILITY........................................79
SECTION 14.9 PROVISION IN CASE OF CONSOLIDATION, MERGER
OR SALE OF ASSETS.....................................79
SECTION 14.10 DUTIES OF TRUSTEE REGARDING CONVERSION..................80
SECTION 14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION..............81
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.1 AGREEMENT OF SUBORDINATION..............................81
SECTION 15.2 PAYMENTS TO HOLDERS.....................................82
SECTION 15.3 SUBROGATION OF SECURITIES...............................85
SECTION 15.4 AUTHORIZATION TO EFFECT SUBORDINATION...................86
SECTION 15.5 NOTICE TO TRUSTEE.......................................87
SECTION 15.6 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS...............88
SECTION 15.7 NO IMPAIRMENT OF SUBORDINATION..........................88
SECTION 15.8 CERTAIN CONVERSIONS DEEMED PAYMENT......................89
SECTION 15.9 ARTICLE APPLICABLE TO PAYING AGENTS.....................89
SECTION 15.10 SENIOR INDEBTEDNESS ENTITLED TO REL.....................89
INDENTURE, dated as of ___________, 2000, between Waddell &
Reed Financial, Inc., a corporation duly organized and existing under the
State of Delaware (herein called the "Company"), having its principal
executive office at 6300 Lamar Avenue, Overland Park, Kansas 66202, and
[___________________], as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as provided in
this Indenture.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof appertaining, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board empowered to act for
it with respect to this Indenture.
"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, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"Class A Common Stock," when used means the Company's Class A
Common Stock having a par value of ($.01) each.
"Class B Common Stock," when used means the Company's Class B
Common Stock having a par value of ($.01) each.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company,
including Class A Common Stock and Class B Common Stock, which has no
preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company; provided,
however, subject to the provisions of Section 14.9, shares issuable upon
conversion of Securities shall include only shares of the class designated
as Common Stock of the Company at the date of this Indenture or shares of
any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which
are not subject to redemption by the Company; provided, further that if at
any time there shall be more than one such resulting class, the shares of
each such class then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the corporation named as the "Company" in the
first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
principal financial officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the corporate trust office of the
Trustee at [___________________________], Attention: Corporate Trust
Department, or such other office, designated by the Trustee by written
notice to the Company, at which at any particular time its corporate trust
business shall be administered.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Credit Agreement" means that certain Credit Agreement, dated as
of October 14, 1999, among the Company, the Lenders party thereto, The
Chase Manhattan Bank, as Administrative Agent, Bank of America, N.A., as
Documentation Agent, and Deutsche Bank AG, as Syndication Agent, as amended
through the date hereof, as further amended, amended and restated,
supplemented or otherwise modified from time to time.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities,
a clearing agency registered under the Exchange Act that is designated to
act as Depositary for such Securities as contemplated by Section 3.1.
"Designated Senior Indebtedness" means the Credit Agreement
and any particular Senior Indebtedness in which the instrument creating or
evidencing the same or the assumption or guarantee thereof (or related
agreements or documents to which the Company is a party) expressly provides
that such Senior Indebtedness shall be "Designated Senior Indebtedness"
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Global Security" means a Security that evidences all or part of
the Securities of any series and bears the legend set forth in Section 2.2
(or such legend as may be specified as contemplated by Section 3.1 for such
Securities).
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" means, with respect to any Person, and without
duplication, (a) all indebtedness, obligations and other liabilities
(contingent or otherwise) of such Person for borrowed money (including
obligations of the Company in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not evidenced
by notes or similar instruments) or evidenced by bonds, debentures, notes
or similar instruments (whether or not the recourse of the lender is to the
whole of the assets of such Person or to only a portion thereof) (other
than any account payable or other accrued current liability or obligation
incurred in the ordinary course of business in connection with the
obtaining of materials or services), (b) all reimbursement obligations and
other liabilities (contingent or otherwise) of such Person with respect to
letters of credit, bank guarantees or bankers' acceptances, (c) all
obligations and liabilities (contingent or otherwise) in respect of leases
of such Person required, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations on the
balance sheet of such Person and all obligations and other liabilities
(contingent or otherwise) under any lease or related document (including a
purchase agreement) in connection with the lease of real property which
provides that such Person is contractually obligated to purchase or cause a
third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor and the obligations of
such Person under such lease or related document to purchase or to cause a
third party to purchase such leased property, (d) all obligations of such
Person (contingent or otherwise) with respect to an interest rate or other
swap, cap or collar agreement or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument or
agreement, (e) all direct or indirect guaranties or similar agreements by
such Person in respect of, and obligations or liabilities (contingent or
otherwise) of such Person to purchase or otherwise acquire or otherwise
assure a creditor against loss in respect of indebtedness, obligations or
liabilities of another Person of the kind described in clauses (a) through
(d), (f) any indebtedness or other obligations described in clauses (a)
through (d) secured by any mortgage, pledge, lien or other encumbrance
existing on property which is owned or held by such Person, regardless of
whether the indebtedness or other obligation secured thereby shall have
been assumed by such Person and (g) any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements
to, any indebtedness, obligation or liability of the kind described in
clauses (a) through (f).
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1; provided, however, that if at any time more
than one Person is acting as Trustee under this Indenture due to the
appointment of one or more separate Trustees for any one or more separate
series of Securities, "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee
established as contemplated by Section 3.1, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted
by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee, but to which such
person, as such Trustee, was not a party; provided, further that in the
event that this Indenture is supplemented or amended by one or more
indentures supplemental hereto which are only applicable to certain series
of Securities, the term "Indenture" for a particular series of Securities
shall only include the supplemental indentures applicable thereto.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended from time
to time.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 5.1(4).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by the principal financial officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for, or an employee of, the Company, and who shall be reasonably
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 13.2; and (4) Securities which have been paid
pursuant to Section 3.6 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable
as of such date upon acceleration of the Maturity thereof to such date
pursuant to Section 5.2, (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section
3.1, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date
in the manner provided as contemplated by Section 3.1, of the principal
amount of such Security (or, in the case of a Security described in Clause
(A) or (B) above, of the amount determined as provided in such Clause), and
(D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"Payment Blockage Notice" has the meaning specified in Section
15.4.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as
specified as contemplated by Section 3.1.
"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 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Record Date" means any Regular Record Date or Special Record
Date.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 3.1.
"Representative" means the (a) indenture trustee or other
trustee, agent or representative for any Senior Indebtedness or (b) with
respect to any Senior Indebtedness that does not have any such trustee,
agent or other representative, (i) in the case of such Senior Indebtedness
issued pursuant to an agreement providing for voting arrangements as among
the holders or owners of such Senior Indebtedness, any holder or owner of
such Senior Indebtedness acting with the consent of the required persons
necessary to bind such holders or owners of such Senior Indebtedness and
(ii) in the case of all other such Senior Indebtedness, the holder or owner
of such Senior Indebtedness.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means the principal of, premium, if any,
interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) and
rent payable on or in connection with, and all fees, costs, expenses and
other amounts accrued or due on or in connection with, Indebtedness of the
Company, whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by the
Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the
case of any particular Indebtedness the instrument creating or evidencing
the same or the assumption or guarantee thereof expressly provides that
such Indebtedness shall not be senior in right of payment to the Securities
or expressly provides that such Indebtedness is "pari passu" or "junior" to
the Securities. Notwithstanding the foregoing, the term Senior Indebtedness
shall not include any Indebtedness of the Company to any subsidiary of the
Company, a majority of the voting stock of which is owned, directly or
indirectly, by the Company.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any
corporation or trust of which a majority of the outstanding voting
securities is at the time, and (ii) any partnership of which a majority of
the equity capital or profit interest is at the time, owned, directly or
indirectly, by the Company, by one or more other Subsidiaries or by the
Company and one or more Subsidiaries. For the purposes of this definition,
"voting securities" means securities which ordinarily has voting power for
the election of directors, whether at all times or only so long as no
senior class of securities has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section
13.4.
"Vice President," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by
an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act
and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. The Trustee shall promptly deliver to
the Company copies of all such instrument or instruments delivered to the
Trustee. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority.
The fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, vote,
notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such
series, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record
date, and no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 1.6.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled
to join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 5.2, (iii) any request
to institute proceedings referred to in Section 5.7(2) or (iv) any
direction referred to in Section 5.12, in each case with respect to
Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall
be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date
for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to
be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set
such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security
or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (or by facsimile transmissions, provided
that oral confirmation of receipt shall have been received) to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing
to the Trustee by the Company, Attention: Chief Financial Officer.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
or delivered by hand or overnight courier to each Holder affected by such
event, at its address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. Neither the failure to mail
or deliver by hand or overnight courier any such notice, nor any defect in
any such notice so mailed or delivered by hand or overnight courier, to any
particular Holder shall affect the sufficiency of such notice with respect
to other Holders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act which is required under such Act to
be a part of and govern this Indenture, the latter provision shall control.
If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.9 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.12 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO SUCH STATE'S CONFLICTS OF LAWS PRINCIPLES.
SECTION 1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security or the last date on which a Holder has
the right to convert a Security at a particular conversion price shall not
be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of
any Security which specifically states that such provision shall apply in
lieu of this Section)) payment of interest or principal (and premium, if
any) or, if applicable to a particular series of Securities, conversion
need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption
Date, at the Stated Maturity or on such last day for conversion, as the
case may be.
SECTION 1.14 INDENTURE AND SECURITIES SOLELY CORPORATE
OBLIGATIONS.
No recourse for the payment of the principal of or premium,
if any, or interest on any Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any
supplemental indenture or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any
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 all such liability is hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
SECTION 1.15 INDENTURE MAY BE EXECUTED IN COUNTERPARTS.
This instrument 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 instruments.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution
thereof. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 3.3 for the authentication and
delivery of such Securities. Any such Board Resolution or record of such
action shall have attached thereto a true and correct copy of the form of
Security referred to therein approved by or pursuant to such Board
Resolution.
SECTION 2.2 FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 3.1
for the Securities evidenced thereby, every Global Security authenticated
and delivered hereunder shall bear a legend in substantially the following
form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 2.3 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
[__________________________________]
As Trustee
By:_________________________________
Authorized Officer
SECTION 2.4 FORM OF CONVERSION NOTICE.
Conversion notices shall be in substantially the following
form:
To Waddell & Reed, Inc.:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of
Common Stock of the Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. If this Notice is being
delivered on a date after the close of business on a Regular Record Date
and prior to the opening of business on the related Interest Payment Date
(unless this Security or the portion thereof being converted has been
called for redemption on a Redemption Date during the period beginning at
the close of business on a Regular Record Date and ending at the opening of
business on the first Business Day after the next succeeding Interest
Payment Date, or if such Interest Payment Date is not a Business Day, the
second such Business Day), this Notice is accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be
converted. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of $1,000, if less than all)
U.S. $_________
Dated: ___________
Signature(s) must be guaranteed by an eligible
guarantor institution (banks, stock brokers,
savings and loan associations and credit
unions with membership in an approved
signature guarantee medallion program)
pursuant to Securities and Exchange Commission
Rule 17Ad-15.
______________________________________________
Signature Guaranty
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered Holder.
_________________________ __________________________________________
(Name) Social Security or Other Taxpayer
Identification Number
_________________________
(Address)
_____________________________
Please print Name and Address
(including zip code number)
[The above conversion notice is to be modified, as appropriate, for
conversion into other securities or property of the Company.]
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.3, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from which
any such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and
any premium and interest on any Securities of the series shall be
payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than by a Board Resolution,
the manner in which any election by the Company to redeem the
Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of the Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States
of America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of
"Outstanding" in Section 1.1;
(12) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of
the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount
thereof, the portion of the principal amount of any Securities of
the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(14) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the
series, in whole or any specified part, shall be defeasible
pursuant to Section 13.2 or Section 13.3 or both such Sections and,
if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, the terms of any right to convert
Securities of the series into shares of Common Stock of the Company
or other securities or property;
(17) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.2 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) whether all of the provisions of this Indenture
relating to the subordination of the Securities (including the
provisions of Article 15), or different subordination provisions,
including a different definition of "Senior Indebtedness" or
"Designated Senior Indebtedness," will apply to Securities of the
series;
(19) any addition to or change in the Events of
Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 5.2;
(20) any addition to or change in the covenants set
forth in Article 10 which applies to Securities of the series; a
(21) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and (subject to
Section 3.3) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article 15.
SECTION 3.2 DENOMINATIONS.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as shall be
specified as contemplated by Section 3.1. In the absence of any such
specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its Chief
Executive Officer, its principal financial officer, its President or one of
its Vice Presidents, attested by its Treasurer, Secretary or one of its
Assistant Treasurers or Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
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 Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and 3.1, 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 6.1) shall be
fully protected in relying upon, a copy of such Board Resolution, the
Officers' Certificate setting forth the terms of the series and an Opinion
of Counsel, with such Opinion of Counsel stating,
(1) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted by
Section 2.1, that such form has been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
If such form or terms have been so established, 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 under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Neither the Company nor the Trustee shall have any
responsibility for any defect in the CUSIP number that appears on any
Security, check, advice of payment or redemption notice, and any such
document may contain a statement to the effect that CUSIP numbers have been
assigned by an independent service for convenience of reference and that
neither the Company nor the Trustee shall be liable for any inaccuracy in
such numbers.
SECTION 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security
of a series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or its attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Securities
of that series (or of that series and specified tenor, as the case may be)
during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 11.3 and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security
or (C) there shall exist such circumstances, if any, in addition to
or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 3.1.
(3) Subject to Clause (2) above, any exchange of a
Global Security for other Securities may be made in whole or in
part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the 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 be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the 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 given
to each Holder of Securities of such series in the manner set forth
in Section 1.6, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Subject to the provisions of Section 14.2, in the case of
any Security (or any part thereof) which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security the principal of (or premium, if any, on) which
shall become due and payable, whether at Stated Maturity or by declaration
of acceleration prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Person in
whose name that Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence or in
Section 14.2, in the case of any Security (or any part thereof) which is
converted, interest whose Stated Maturity is after the date of conversion
of such Security (or such part thereof) shall not be payable.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 3.7) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
A6RTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated
and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose payment
money has theretofore been deposited in trust or segregated and
held in trust by the Trustee or the Company and thereafter
repaid to the Company or discharged from such trust, as provided
in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company, in the case of
(i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and any premium
and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be occasioned by
the provisions of Article 15 or be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any reapplicable Federal
or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
equestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action;
or
(7) any other Event of Default provided with respect
to Securities of that series.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified
in Section 5.1(5) or 5.1(6)) with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of
all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If
an Event of Default specified in Section 5.1(5) or 5.1(6) with respect to
Securities of any series at the time Outstanding occurs, the principal
amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and
payable. Any payments by the Company on the Securities following any such
acceleration will be subject to the subordination provisions of Article 15
to the extent provided therein.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise
than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 5.13. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: Subject to Article 15, to the payment of the amounts
then due and unpaid for principal of and any premium, if any, and interest
on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal and any premium, if any, and interest, respectively.
THIRD: The balance, if any, to the Company or any other Person
or Persons entitled thereto.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding
Securities of that series; it being understood and intended that no
one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date), to convert such Securities in accordance with Article
14 to the extent that such right to convert is applicable to such Security
and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee (subject to the limitations contained in this Indenture) or by
the Holders, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture and the Trustee shall not have
determined that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other
series, not taking part in such direction; and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction
or this Indenture.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except
(1) a default in the payment of the principal of or any
premium or interest on any Security of such series, or
(2) to the extent such right is applicable to such
Security, a failure by the Company on request to convert any
Security into Common Stock; or
(3) in respect of a covenant or provision hereof
which under Article 9 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right
to convert any Security in accordance with Article 14.
SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2 NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 5.1(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) is entitled to and may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) 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, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) 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, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
and
(7) 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
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity, sufficiency or priority of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES AND ACT AS TRUSTEE
UNDER OTHER INDENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Subject to the limitations imposed by the Trust Indenture Act,
nothing in this Indenture shall prohibit the Trustee from becoming and
acting as trustee under other indentures under which other securities, or
certificates of interest of participation in other securities, of the
Company are outstanding in the same manner as if it were not Trustee
hereunder.
SECTION 6.6 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder 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 money received by
it hereunder except as otherwise agreed with the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 6.8 CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by such Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee
under this Indenture with respect to Securities of more than one series.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has (or if the Trustee is a member of a bank holding company
system, its bank holding company has) a combined capital and surplus of at
least $50,000,000. If any such Person or bank holding company publishes
reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person or bank holding
company shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days
after the giving 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 the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request therefor
by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company by a Board
Resolution may remove the Trustee with respect to all Securities,
or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, the retiring Trustee may petition, or
any Holder who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series to all Holders of Securities of such series in the manner
provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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.
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) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring 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 and 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 upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
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
all 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.
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 the first or second preceding paragraph, as the case may be.
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.
SECTION 6.12 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 all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
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 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, 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. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having (or if the Authenticating Agent is a member of
a bank holding company system, its bank holding company has) a combined
capital and surplus of not less than $50,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section 6.12, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[-------------------]
As Trustee
By:--------------------------------------------
As Authenticating Agent
By:--------------------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after the
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities of each series as of such Regular Record Date, as the
case may be, and
(2) 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 that no such list need be furnished by the Company to the
Trustee so long as the Trustee is acting as Security Registrar.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3 REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than July 1 in each
calendar year, commencing with the first July 1 after the first issuance of
Securities pursuant to this Indenture.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
SECTION 7.4 REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to the Trust Indenture
Act; provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge
into another Person (in a transaction in which the Company is not
the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, limited
liability company, partnership or trust, shall be organized and
validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be
performed or observed and the conversion rights shall be provided
for in accordance with Article 14, if applicable, or as otherwise
specified pursuant to Section 3.1, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the
Trustee, by the Person (if other than the Company) formed by such
consolidation or into which the Company shall have been merged or
by the Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company, or successive successions, and the assumption by any
such successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11; or
(9) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion of the securities into any
security (other than the Common Stock of the Company) or property
of the Company; or
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (10) shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(11) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of Securities
pursuant to Articles Four and Thirteen, provided that any such
action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any
material respect.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the
amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to
the subordination of such series of Securities in a manner adverse
to the Holders of Securities of such series, or, in the case of
securities of any series that are convertible into Securities or
other securities of the Company, adversely affect the right of
Holders to convert any of the Securities of such series other than
as provided in or pursuant to this Indenture, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.06, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section
10.6, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 9.1(8), or
(4) if applicable, make any change that adversely
affects the right to convert any security as provided in Article 14
or pursuant to Section 3.1 (except as permitted by Section 9.1(9))
or decrease the conversion rate or increase the conversion price of
any such security. A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Sections 6.1 and 6.3) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 9.7 SUBORDINATION UNIMPAIRED.
No provision in any supplemental indenture which affects the
superior position of the holders of Senior Indebtedness shall be effective
against holders of Senior Indebtedness.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of
and any premium and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange, where
Securities of that series may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, 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, surrenders, notices and demands. Unless
otherwise provided in a supplemental indenture or pursuant to Section 3.1
hereof, the Place of Payment for any series of Securities shall be the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or prior to each due date of the
principal of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum
to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (1) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (2) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining
unclaimed for a period ending on the earlier of the date that is ten
Business Days prior to the date such money would escheat to the State or
two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on
each Business Day and of general circulation in each Place of Payment,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge. The fiscal year of the Company currently ends on
December 31; and the Company will give the Trustee prompt written notice of
any change of its fiscal year.
SECTION 10.5 EXISTENCE.
Subject to Article 8, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence.
SECTION 10.6 WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 3.1
for Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with
any term, provision or condition set forth in any covenant provided
pursuant to Section 3.1(20) or 9.1(2) for the benefit of the Holders of
such series if before the time for such compliance the Holders of at least
a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for such
Securities) in accordance with this Article.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or in another manner specified as
contemplated by Section 3.1 for such Securities. In case of any redemption
at the election of the Company of less than all the Securities of any
series (including any such redemption affecting only a single Security),
the Company shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor
of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a specified tenor
are to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
by lot, or in the Trustee's discretion, on a pro-rata basis, provided that
the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities
of such series and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the
preceding sentence.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding
for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount
of the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 11.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the Securities to
be redeemed, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (including accrued
interest, if any),
(3) if less than all the Outstanding Securities of
any series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the
particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where each such Security is
to be surrendered for payment of the Redemption Price,
(6) if applicable, the conversion price, the date on
which the right to convert the principal of the Securities or
the portions thereof to be redeemed will terminate, and the
place or places where such Securities may be surrendered for
conversion, and
(7) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and
shall be irrevocable.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date.
If any Security called for redemption is converted, any
money deposited with the Trustee or with a Paying Agent or so segregated
and held in trust for the redemption of such Security shall (subject to the
right of any Holder of such Security to receive interest as provided in the
last paragraph of Section 3.7) be paid to the Company on Company Request,
or if then held by the Company, shall be discharged from such trust.
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for
by the terms of any Securities 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 such Securities is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of
such Securities.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to any Securities of such series
required to be made pursuant to the terms of such Securities as and to the
extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days prior to
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 11.3 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 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have
Section 13.2 or Section 13.3 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 3.1 as being
defeasible pursuant to such Section 13.2 or 13.3, in accordance with any
applicable requirements provided pursuant to Section 3.1 and upon
compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 3.1 for such Securities.
SECTION 13.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as the
case may be, the Company shall be deemed to have been discharged from its
obligations, and the provisions of Article 15 shall cease to be effective,
with respect to such Securities as provided in this Section on and after
the date the conditions set forth in Section 13.4 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of such Securities to receive,
solely from the trust fund described in Section 13.4 and as more
fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when
payments are due,
(2) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, and, if
applicable, Article 14,
(3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and
(4) this Article, subject to compliance with this
Article, the Company may exercise its option (if any) to have this
Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 13.3 applied to
such Securities.
SECTION 13.3 COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as the
case may be:
(1) the Company shall be released from its obligations
under Sections 10.6 through 10.9, inclusive, and any covenants
provided pursuant to Section 3.1(20) or 9.1(2) or for the benefit
of the Holders of such Securities and
(2) the occurrence of any event specified in Section
5.1(4) (with respect to any of Sections 10.6 through 10.9,
inclusive, and any such covenants provided pursuant to Section
3.1(20) or 9.1(2) shall be deemed not to be or result in an Event
of Default,
(3) the provisions of Article 15 shall cease to be
effective, in each case with respect to such Securities as provided
in this Section on and after the date the conditions set forth in
Section 13.4 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 5.1(4)), or Article
15, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference
in any such Section or Article to any other provision herein or in
any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application of
Section 13.2 or Section 13.3 to any Securities or any series of Securities,
as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 6.9 and agrees
to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case 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 and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with
the terms of this Indenture and such Securities. As used herein,
"U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America
is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y)
any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above
and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is
so specified and held, provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest
evidenced by such depositary receipt
(2) In the event of an election to have Section 13.2
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.3
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not
to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such
event specified in Sections 5.1(5) and (6), at any time on or prior
to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such
90th day)
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning
of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act
unless such trust shall be registered under such Act or exempt from
registration thereunder.
(9) At the time of such deposit,
(A) no default in the payment of any principal
of or premium or interest on any Senior Indebtedness
shall have occurred and be continuing,
(B) no event of default with respect to any
Senior Indebtedness shall have resulted in such
Senior Indebtedness becoming, and continuing to be,
due and payable prior to the date on which it would
otherwise have become due and payable (unless payment
of such Senior Indebtedness has been made or duly
provided for), and
(C) no other event of default with respect to
any Senior Indebtedness shall have occurred and be
continuing permitting (after notice or lapse of time
or both) the holders of such Senior Indebtedness (or
a trustee on behalf of such holders) to declare such
Senior Indebtedness due and payable prior to the date
on which it would otherwise have become due and
payable.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
SECTION 13.5 DEPOSITED MONEY AND US GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 13.6, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
13.4 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become
due thereon in respect of principal and any premium and interest, but money
so held in trust need not be segregated from other funds except to the
extent required by law. Money and U.S. Government Obligations so held in
trust shall not be subject to the provisions of Article 15.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 13.4 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Securities.
SECTION 13.6 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 13.2 or 13.3 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article
with respect to such Securities, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section
13.5 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or
any premium or interest on any such Security following such reinstatement
of its obligations, the Company shall be subrogated to the rights (if any)
of the Holders of such Securities to receive such payment from the money so
held in trust.
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of Common Stock
of the Company, and the issuance of such shares of Common Stock upon the
conversion of such Securities, except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series.
SECTION 14.2 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise a conversion privilege, the Holder of a
Security of a series with such a privilege shall surrender such Security to
the Company at the office or agency maintained for that purpose pursuant to
Section 10.2, accompanied by a duly executed conversion notice to the
Company substantially in the form set forth in Section 2.6 stating that the
Holder elects to convert such Security or a specified portion thereof. Such
notice shall also state, if different from the name and address of such
Holder, the name or names (with address) in which the certificate or
certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued. Securities surrendered for conversion shall (if
so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company
and the Trustee duly executed by the registered Holder or its attorney duly
authorized in writing; and Securities so surrendered for conversion (in
whole or in part) during the period from the close of business on any
Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (excluding Securities or portions thereof called for
redemption during the period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the first
Business Day after the next succeeding Interest Payment Date, or if such
Interest Payment Date is not a Business Day, the second such Business Day)
shall also be accompanied by payment in funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on
the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of Section 3.7
relating to the payment of Defaulted Interest by the Company. As promptly
as practicable after the receipt of such notice and of any payment required
pursuant to a Board Resolution and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Company may prescribe,
the Company shall issue and shall deliver, at the office or agency at which
such Security is surrendered, to such Holder or on its written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion
thereof), in accordance with the provisions of such Board Resolution,
Officers' Certificate or supplemental indenture, and cash as provided
therein in respect of any fractional share of such Common Stock otherwise
issuable upon such conversion. Such conversion shall be deemed to have been
effected immediately prior to the close of business on the date on which
such notice and such payment, if required, shall have been received in
proper order for conversion by the Company and such Security shall have
been surrendered as aforesaid (unless such Holder shall have so surrendered
such Security and shall have instructed the Company to effect the
conversion on a particular date following such surrender and such Holder
shall be entitled to convert such Security on such date, in which case such
conversion shall be deemed to be effected immediately prior to the close of
business on such date) and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for shares of Common
Stock of the Company shall be issuable upon such conversion shall be deemed
to have become the Holder or Holders of record of the shares represented
thereby. Except as set forth above and subject to the final paragraph of
Section 3.7, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities (or any part thereof)
surrendered for conversion or on account of any dividends on the Common
Stock of the Company issued upon such conversion. In the case of any
Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Company, a new Security
or Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the unconverted portion of such Security.
SECTION 14.3 NO FRACTIONAL SHARES.
No fractional share of Common Stock of the Company shall be
issued upon conversions of Securities of any series. If more than one
Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. If, except for the provisions of this Section 14.3, any
Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such
Holder an amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed or admitted
to unlisted trading privileges on a national securities exchange or market,
on the basis of the last reported sale price regular way on such exchange
or market on the last trading day prior to the date of conversion upon
which such a sale shall have been effected, or (ii) if such Common Stock is
not at the time so listed or admitted to unlisted trading privileges on a
national securities exchange or market, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the-counter market,
on the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the
National Quotation Bureau, Incorporated is no longer reporting such
information, or if not so available, the fair market price as determined by
the Board of Directors. For purposes of this Section, "trading day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday other than any
day on which the Common Stock is not traded on the Nasdaq National Market,
or if the Common Stock is not traded on the Nasdaq National Market, on the
principal exchange or market on which the Common Stock is traded or quoted.
SECTION 14.4 ADJUSTMENT OF CONVERSION PRICE.
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any
stock dividends, stock splits, reclassifications, combinations or similar
transactions in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute the
adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 10.2 and,
if different, with the Trustee. The Company shall forthwith cause a notice
setting forth the adjusted conversion price to be mailed, first class
postage prepaid, to each Holder of Securities of such series at its address
appearing on the Security Register and to any conversion agent other than
the Trustee.
SECTION 14.5 NOTICE OF CERTAIN CORPORATE ACTIONS.
In case:
(1) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in
cash out of its retained earnings (other than a dividend for which
approval of any shareholders of the Company is required) that would
require an adjustment pursuant to Section 14.4; or
(2) the Company shall authorize the granting to all
or substantially all of the holders of its Common Stock of rights,
options or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights (other than any
such grant for which approval of any shareholders of the Company is
required); or
(3) of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its
outstanding shares of Common Stock, or of any consolidation, merger
or share exchange to which the Company is a party and for which
approval of any shareholders of the Company is required), or of the
sale of all or substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; then the Company shall
cause to be filed with the Trustee, and shall cause to be mailed to
all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case
specified in Clause (1) or (2) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on
which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of
Record to be entitled to such dividend, distribution, rights,
options or warrants are to be determined, or (ii) the date on which
such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up. If at any time the
Trustee shall not be the conversion agent, a copy of such notice
shall also forthwith be filed by the Company with the Trustee.
SECTION 14.6 RESERVATION OF SHARES OF COMMON STOCK.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common
Stock, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.
SECTION 14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION.
Except as provided in the next sentence, the Company will
pay any and all taxes that may be payable in respect of the issue or
delivery of shares of its Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue and
delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue
has paid to the Company the amount of any such tax, or has established, to
the satisfaction of the Company, that such tax has been paid.
SECTION 14.8 NONASSESSABILITY.
The Company covenants that all shares of its Common Stock
which may be issued upon conversion of Securities will upon issue in
accordance with the terms hereof be duly and validly issued and fully paid
and nonassessable.
SECTION 14.9 PROVISION IN CASE OF CONSOLIDATION, MERGER
OR SALE OF ASSETS.
In case of any consolidation or merger of the Company with or
into any other Person, any merger of another Person with or into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock
of the Company) or any conveyance, sale, transfer or lease of all or
substantially all of the assets of the Company, the Person formed by such
consolidation or resulting from such merger or which acquires such assets,
as the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security of a series then
Outstanding that is convertible into Common Stock of the Company shall have
the right thereafter (which right shall be the exclusive conversion right
thereafter available to said Holder), during the period such Security shall
be convertible, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease by a holder of the number of
shares of Common Stock of the Company into which such Security might have
been converted immediately prior to such consolidation, merger, conveyance,
sale, transfer or lease, assuming such holder of Common Stock of the
Company (i) is not a Person with which the Company consolidated or merged
with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a
"Constituent Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease (provided that if the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer, or lease is not the same
for each share of Common Stock of the Company held immediately prior to
such consolidation, merger, conveyance, sale, transfer or lease by others
than a Constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised ("Non-electing
Share"), then for the purpose of this Section 14.9 the kind and amount of
securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease by the holders of each
Non-electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-electing Shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article or in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of such adjustments. The above
provisions of this Section 14.9 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of
the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Security of a series that is convertible into
Common Stock of the Company as provided in Section 1.6 promptly upon such
execution. Neither the Trustee nor any conversion agent, if any, shall be
under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash
receivable by Holders of Securities of a series convertible into Common
Stock of the Company upon the conversion of their Securities after any such
consolidation, merger, conveyance, transfer, sale or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, an Opinion of
Counsel with respect thereto, which the Company shall cause to be furnished
to the Trustee upon request.
SECTION 14.10 DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any conversion agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible into Common Stock of the Company to determine
whether any facts exist which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, whether herein or in any
supplemental indenture, any resolutions of the Board of Directors or
written instrument executed by one or more officers of the Company provided
to be employed in making the same. Neither the Trustee nor any conversion
agent shall be accountable with respect to the validity or value (or the
kind or amount) of any shares of Common Stock of the Company, or of any
securities or property, which may at any time be issued or delivered upon
the conversion of any Securities and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Subject to the
provisions of Section 6.1, neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of its Common Stock or stock certificates or other
securities or property upon the surrender of any Security for the purpose
of conversion or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one
or more duly authorized officers of the Company.
SECTION 14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other paying agent for the
purpose of paying the principal of, and premium, if any, and interest, if
any, on any of the Securities (including, but not limited to, funds
deposited for the sinking fund referred to in Article 12 hereof and funds
deposited pursuant to Article 13 hereof) and which shall not be required
for such purposes because of the conversion of such Securities as provided
in this Article 14 shall after such conversion be repaid to the Company by
the Trustee upon the Company's written request.
ARTICLE 15
SUBORDINATION OF SECURITIES
SECTION 15.1 AGREEMENT OF SUBORDINATION.
Except as otherwise provided in a supplemental indenture or
pursuant to Section 3.1, the Company covenants and agrees, and each Holder
of Securities issued hereunder by his acceptance thereof likewise covenants
and agrees, that all Securities shall be issued subject to the provisions
of this Article 15; and each Person holding any Security, whether upon
original issue or upon transfer, assignment or exchange thereof, accepts
and agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and interest
on all Securities (including, but not limited to, the redemption price with
respect to the Securities called for redemption in accordance with Article
11 as provided in the Indenture) issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and subject in right
of payment to the prior payment in full of all Senior Indebtedness, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article 15 shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 15.2 PAYMENTS TO HOLDERS.
No payment shall be made with respect to the principal of, or
premium, if any, or interest on the Securities (including, but not limited
to, the redemption price with respect to the Securities to be called for
redemption in accordance with Article 11 as provided in the Indenture),
except payments and distributions made by the Trustee as permitted by the
first or second paragraph of Section 15.5, if:
(i) a default in the payment of principal,
premium, interest, rent or other obligations due on any
Senior Indebtedness occurs and is continuing (or, in the
case of Senior Indebtedness for which there is a period of
grace, in the event of such a default that continues beyond
the period of grace, if any, specified in the instrument or
lease evidencing such Senior Indebtedness), unless and
until such default shall have been cured or waived or shall
have ceased to exist; or
(ii) a default, other than a payment default, on a
Designated Senior Indebtedness occurs and is continuing
that then permits holders of such Designated Senior
Indebtedness to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage
Notice") from a Representative or the Company.
If the Trustee receives any Payment Blockage Notice pursuant to
clause (ii) above, no subsequent Payment Blockage Notice shall be effective
for purposes of this Section unless and until (A) at least 365 days shall
have elapsed since the initial effectiveness of the immediately prior
Payment Blockage Notice, and (B) all scheduled payments of principal,
premium, if any, and interest on the Securities that have come due have
been paid in full in cash. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
The Company may and shall resume payments on and distributions
in respect of the Securities upon the earlier of:
(1) the date upon which the default is cured or waived or
ceases to exist, or
(2) in the case of a default referred to in clause
(ii) above, 179 days pass after notice is received if the maturity
of such Designated Senior Indebtedness has not been accelerated,
unless this Article 15 otherwise prohibits the payment or distribution at
the time of such payment or distribution.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full
in cash or other payment satisfactory to the holders of such Senior
Indebtedness, or payment thereof in accordance with its terms provided for
in cash or other payment satisfactory to the holders of such Senior
Indebtedness, before any payment is made on account of the principal of,
premium, if any, or interest on the Securities (except payments made
pursuant to Article 4 from monies deposited with the Trustee pursuant
thereto prior to commencement of proceedings for such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution
or winding-up or liquidation or reorganization of the Company or
bankruptcy, insolvency, receivership or other proceeding, any payment by
the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled, except for the provision
of this Article 15, shall (except as aforesaid) be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness held
by such holders, or as otherwise required by law or a court order) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in
cash or other payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness, before any payment or
distribution or provision therefor is made to the Holders of the Securities
or to the Trustee.
For purposes of this Article 15, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article 15 with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the
Senior Indebtedness is assumed by the new corporation, if any, resulting
from any reorganization or readjustment, and (ii) the rights of the holders
of Senior Indebtedness (other than leases which are not assumed by the
Company or the new corporation, as the case may be) are not, without the
consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 8 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section
15.2 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in
Article 8. In the event of the acceleration of the Securities because of an
Event of Default, no payment or distribution shall be made to the Trustee
or any Holder of Securities in respect of the principal of, premium, if
any, or interest on the Securities (including, but not limited to, the
redemption price with respect to the Securities called for redemption in
accordance with Article 11 as provided in the Indenture), except payments
and distributions made by the Trustee as permitted by the first or second
paragraph of Section 15.5, until all Senior Indebtedness has been paid in
full in cash or other payment satisfactory to the holders of Senior
Indebtedness or such acceleration is rescinded in accordance with the terms
of this Indenture. If payment of the Securities is accelerated because of
an Event of Default, the Company shall promptly notify holders of Senior
Indebtedness of the acceleration , unless there are no payment obligations
of the Company thereunder and all obligations thereunder to extend credit
have been terminated or expired.
In the event that, notwithstanding the foregoing provisions,
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (including, without
limitation, by way of setoff or otherwise), prohibited by the foregoing,
shall be received by the Trustee or the Holders of the Securities before
all Senior Indebtedness is paid in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness, or provision is
made for such payment thereof in accordance with its terms in cash or other
payment satisfactory to the holders of such Senior Indebtedness, such
payment or distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in cash or other payment satisfactory to the
holders of such Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 15.2 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.7. This Section
15.2 shall be subject to the further provisions of Section 15.5.
SECTION 15.3 SUBROGATION OF SECURITIES.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article 15 (equally and
ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company applicable to the Senior Indebtedness until
the principal, premium, if any, and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article 15, and
no payment over pursuant to the provisions of this Article 15, to or for
the benefit of the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Company to or on account of
the Senior Indebtedness; and no payments or distributions of cash, property
or securities to or for the benefit of the Holders of the Securities
pursuant to the subrogation provisions of this Article 15, which would
otherwise have been paid to the holders of Senior Indebtedness shall be
deemed to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article 15 are and
are intended solely for the purposes of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article 15 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 15 of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article 15, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in
which such bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
the Securities, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable
thereon and all other facts pertinent thereto or to this Article 15.
SECTION 15.4 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Security by the holder's acceptance thereof
authorizes and directs the Trustee on the holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 15 and appoints the Trustee to act as the
holder's attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form required
in any proceeding referred to in Section 5.3 hereof at least 30 days before
the expiration of the time to file such claim, the holders of any Senior
Indebtedness or their representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities.
SECTION 15.5 NOTICE TO TRUSTEE.
The Company shall give prompt written notice in the form of an
Officers' Certificate to a Responsible Officer of the Trustee and to any
paying agent of any fact known to the Company which would prohibit the
making of any payment of monies to or by the Trustee or any paying agent in
respect of the Securities pursuant to the provisions of this Article 15.
Notwithstanding the provisions of this Article 15 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article 15, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof at the Corporate
Trust Office from the Company (in the form of an Officers' Certificate) or
a Representative or a holder or holders of Senior Indebtedness or from any
trustee thereof; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; provided that if on a date not
fewer than two Business Days prior to the date upon which by the terms
hereof any such monies may become payable for any purpose (including,
without limitation, the payment of the principal of, or premium, if any, or
interest on any Security) the Trustee shall not have received, with respect
to such monies, the notice provided for in this Section 15.5, then,
anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such
prior date.
Notwithstanding anything in this Article 15 to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Section 4.1, and any such payment shall not
be subject to the provisions of Section 15.1 or 15.2.
The Trustee, subject to the provisions of Section 6.1, shall be
entitled to rely on the delivery to it of a written notice by a
Representative or a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a Representative or a holder of Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 15, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article 15, and if such
evidence is not furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive
such payment.
SECTION 15.6 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 15 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in Section 6.13 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 15, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and, subject to the provisions of Section 6.1, the
Trustee shall not be liable to any holder of Senior Indebtedness if it
shall pay over or deliver to Holders of Securities, the Company or any
other person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article 15 or otherwise.
SECTION 15.7 NO IMPAIRMENT OF SUBORDINATION.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
SECTION 15.8 CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article 15 only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance
with Article 14 shall not be deemed to constitute a payment or distribution
on account of the principal of (or premium, if any) or interest on
Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 14.3), property or
securities (other than junior securities) upon conversion of a Security
shall be deemed to constitute payment on account of the principal of such
Security. For the purposes of this Section 15.8, the term "junior
securities" means (a) shares of any stock of any class of the Company, or
(b) securities of the Company which are subordinated in right of payment to
all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article. Nothing contained in this Article 15 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the
Holders of Securities, the right, which is absolute and unconditional, of
the Holder of any Security to convert such Security in accordance with
Article 14.
SECTION 15.9 ARTICLE APPLICABLE TO PAYING AGENTS.
If at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall (unless the context otherwise
requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article in addition to or in place of the Trustee;
provided, however, that the first paragraph of Section 15.5 shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
SECTION 15.10 SENIOR INDEBTEDNESS ENTITLED TO RELY.
The holders of Senior Indebtedness (including, without
limitation, Designated Senior Indebtedness) shall have the right to rely
upon this Article 15, and no amendment or modification of the provisions
contained herein shall diminish the rights of such holders unless such
holders shall have agreed in writing thereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
WADDELL & REED FINANCIAL, INC.
By:____________________________________
Title:_________________________________
ATTEST:
[_____________________],
as Trustee
By:____________________________________
Title:_________________________________
