SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 21, 1995
ALEX. BROWN INCORPORATED
(Exact name of registrant as specified in its charter)
MARYLAND 0-14199 52-1434118
(State of incorporation (Commission (IRS Employer
or organization) File Number) Identification No.)
135 EAST BALTIMORE STREET
BALTIMORE, MD 21202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (410) 727-1700
Item 5. Other Events
Attached and incorporated herein by reference as Exhibit 4.1 is
a specimen of the global security for the 7 5/8% Senior Notes Due 2005 and
as Exhibit 4.2 is the Senior Indenture dated as of July 10, 1995 between
Alex. Brown Incorporated and Chemical Bank, trustee.
Item 7(c).Exhibits
4.1 -- Specimen of global security for the 7 5/8% Senior Notes Due 2005
4.2 -- Senior Indenture dated as of July 10, 1995 between Alex. Brown
Incorporated and Chemical Bank, trustee, relating to the
Registrant's 7 5/8% Senior Notes Due 2005
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
ALEX. BROWN INCORPORATED
(Registrant)
By: /s/ A.B. Krongard
A.B. Krongard
Chairman and Chief Executive Officer
Date: August 21, 1995
<PAGE>
EXHIBIT 4.1
[Specimen]
REGISTERED REGISTERED NO. R-1
U.S.$110,000,000 CUSIP: 013902AB7
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Securities
in definitive registered form, this certificate may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
ALEX. BROWN INCORPORATED
7-5/8% SENIOR NOTE DUE 2005
Alex. Brown Incorporated, a Maryland corporation (herein called the
"Company", which term includes any successor Person under the Senior Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede
& Co., or registered assigns, the principal sum of One Hundred Ten Million
United States Dollars (U.S.$110,000,000) on August 15, 2005, at the office or
agency of the Company referred to below, and to pay interest thereon
semi-annually in arrears on February 15 and August 15 of each year, commencing
February 15, 1996 (each such date an "Interest Payment Date"), at the rate of
7-5/8% per annum, until the principal hereof is paid or duly provided for.
Reference is made to the further provisions of this certificate set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Registered Global Note to be
duly executed.
Dated: ALEX. BROWN INCORPORATED,
as Issuer
By [Specimen]
[Seal]
Attest:
Authorized Signature
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of a series referred to in the within-
mentioned Senior Indenture.
CHEMICAL BANK, as Trustee
By [Specimen]
Authorized Officer
Dated:
<PAGE> 3
Interest on this Registered Global Note (as described below) will accrue from
the most recent payment date to which interest has been paid or duly provided
for, or if no interest has been paid or duly provided for, from August 21,
1995, until the principal hereof has been paid or duly made available for
payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Senior Indenture, be
paid to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the first day of the
month in which such Interest Payment Date occurs (whether or not a Business
Day) (each such date a Record Date), which shall be the February 1 or August
1, as the case may be, next preceding such Interest Payment Date. Payment
of the principal of and interest on this Security will be made in immediately
available funds at the Corporate Trust Office of the Trustee or such other
office or agency of the Company as may be designated for such purpose, in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided
however, that at the Company's option payment of interest due on an Interest
Payment Date may be made by check in immediately available funds mailed to
the address of the Person entitled thereto as such address shall appear on
the Security register maintained by the Company, or, if such Person shall
have made arrangements therefor in writing (or such other means as deemed
acceptable by the Paying Agent) with the Paying Agent not later than the
Record Date immediately preceding the applicable Interest Payment Date, then
by wire transfer of immediately available funds to an account maintained by
such Person at a bank located in the United States.
This Registered Global Note is one of the duly authorized debt
securities of the Company (herein called the "Securities" and individually a
"Security") issued or to be issued in one or more series under an indenture
dated as of July 10, 1995 (the "Senior Indenture") between the Company and
Chemical Bank, trustee (herein called the "Trustee", which term includes any
successor trustee under the Senior Indenture), to which Senior Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is a Registered Global Note of a
series designated as the 7-5/8% Senior Notes Due 2005 (the "Senior Notes"),
limited in aggregate principal amount to $110,000,000.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Senior Indenture.
The Securities of this series are not subject to any sinking fund
and are not subject to redemption prior to maturity.
<PAGE>
4
The Senior Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Events of Default, upon compliance by
the Company with certain conditions set forth therein, which provisions apply
to this Security.
The Senior Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
all series to be affected under the Senior Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of all
series affected thereby (voting as one class). The Senior Indenture also
contains provisions permitting the Holders of not less than specified
percentages in aggregate principal amount of the Outstanding Securities of
all series affected, on behalf of the Holders of all the Securities of such
series, to waive certain past defaults under the Senior Indenture and their
consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Security of this series will have any right to
institute any proceeding with respect to the Senior Indenture or for any
remedy thereunder, unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default with respect to
this series, the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of each series affected (treated as a single
class) shall have made written request, and offered reasonable indemnity, to
the Trustee to institute such proceeding as trustee, and the Trustee shall
not have received from the Holders of a majority in aggregate principal amount
of the Outstanding Securities of each series affected (with all such series
voting as a single class) a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days; provided however,
that such limitations do not apply to a suit instituted by the Holder
hereof for the enforcement of payment of the principal of or interest on
this Security on or after the respective due dates expressed herein.
No reference herein to the Senior Indenture and no provision
of this Security or of the Senior Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay
the principal of and interest on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
The Trustee has been appointed registrar of the Senior Notes,
and the Trustee will maintain at its office in the Borough of Manhattan,
The City of New York, a register for the registration and transfer of
Senior Notes. As provided in the Senior Indenture and subject to
certain limitations therein set forth, this Registered Global Note may
be transferred
<PAGE>
5
at the aforesaid office of the Trustee upon surrender of
this Registered Global Note for cancellation and thereupon the Company
shall execute and the Trustee shall authenticate and deliver in the name
of the transferee or transferees, in exchange therefor, a new Registered
Global Note or Registered Global Notes having identical terms and
provisions and having a like aggregate principal amount in authorized
denomination.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Senior Indenture and subject to
certain limitations therein set forth, the Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of a different authorized denomination, as requested by the
Holder surrendering the same.
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
payable in connection therewith.
Subject to the provisions of the Senior Indenture, the
Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be
overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
If at any time, (i) the Depositary is unwilling, unable or
ineligible to continue as Depositary and a successor Depositary is not
appointed by the Company within 90 days, or (ii) the Company determines
that the Securities shall no longer be represented by a global Security
or Securities, then the Company will execute and the Trustee will
authenticate and deliver Securities in definitive registered form, in
authorized denominations, and in an aggregate principal amount equal to
the principal amount of this Security in exchange for this Security.
Such Securities in definitive registered form shall be registered in
such names and issued in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such
Securities are so registered.
Unless the certificate of authentication hereon has been duly
executed by or on behalf of Chemical Bank, the Trustee under the Senior
Indenture, or its successor thereunder, by the manual signature of one
of its authorized officers, this Security shall not be entitled to any
benefit under the Senior Indenture, or be valid or obligatory for any
purpose.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
Exhibit 4.2
ALEX. BROWN INCORPORATED
and
CHEMICAL BANK, Trustee
Senior Indenture
Dated as of July 10, 1995
_______________
<PAGE>
CROSS REFERENCE SHEET*
___________
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture
to be dated as of July 10, 1995 between ALEX. BROWN INCORPORATED and
CHEMICAL BANK, Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2) . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . 6.13(a) and (c)(1) and (2)
311(b) . . . . . . . . . . . . . 6.13(b)
311(c) . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii), (iv), (v) and (vi)
313(b)(1) . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . 4.4
313(c) . . . . . . . . . . . . . 4.4
313(d) . . . . . . . . . . . . . 4.4
314(a) . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . 6.1
315(b) . . . . . . . . . . . . . 5.11
315(e) . . . . . . . . . . . . . 5.12
316(a)(1) . . . . . . . . . . . . 5.9
316(c)(2) . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . 7.4
316(b) . . . . . . . . . . . . . 5.7
317(a) . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . 3.4(a) and (b)
318(a) . . . . . . . . . . . . . 11.7
* This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
_________
Page
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Associate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Change of Control . . . . . . . . . . . . . . . . . . . . . . 2
Change of Control Purchase Date . . . . . . . . . . . . . . . 4
Change of Control Purchase Notice . . . . . . . . . . . . . . 4
Change of Control Purchase Price . . . . . . . . . . . . . . 4
Closing Price . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 5
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . 5
Conversion Agent . . . . . . . . . . . . . . . . . . . . . . 5
Conversion Price . . . . . . . . . . . . . . . . . . . . . . 5
Converting Holder . . . . . . . . . . . . . . . . . . . . . . 5
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 5
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 5
Current Market Price . . . . . . . . . . . . . . . . . . . . 6
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . 6
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . . . . . . . . 6
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . 6
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . 6
Holder, Holder of Securities, Securityholder . . . . . . . . 6
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . 7
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . 7
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officer's Certificate . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Date . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 8
<PAGE>
-ii-
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Permitted Liens . . . . . . . . . . . . . . . . . . . . . . . 8
principal . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Global Security . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . 9
Required Currency . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 9
Security or Securities . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trading Day . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Unregistered Security . . . . . . . . . . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . . . . . . . . . . . 10
Voting Security . . . . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . 10
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . 11
SECTION 2.4 Authentication and Delivery of Securities . . . . . . 14
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . 16
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . 17
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . 18
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . 22
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . 23
<PAGE>
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ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . 23
SECTION 3.2 Offices for Payments, Etc. . . . . . . . . . . . . . 24
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee . 25
SECTION 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5 Written Statement to Trustee . . . . . . . . . . . . 26
SECTION 3.6 Negative Pledge . . . . . . . . . . . . . . . . . . . 26
SECTION 3.7 Luxembourg Publications . . . . . . . . . . . . . . . 27
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders . . . . . . . . . . . . . . 27
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.3 Reports by Issuer . . . . . . . . . . . . . . . . . . 29
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . 29
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.3 Application of Proceeds . . . . . . . . . . . . . . . 35
SECTION 5.4 Suits for Enforcement . . . . . . . . . . . . . . . . 36
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings . 36
SECTION 5.6 Limitations on Suits by Securityholders . . . . . . . 37
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.9 Control by Holders of Securities . . . . . . . . . . 38
SECTION 5.10 Waiver of Past Defaults . . . . . . . . . . . . . . 38
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances . . . . . . . . . . . . . . . . . . 39
SECTION 5.12 Right of Court to Require Filing of Undertaking to
Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 39
<PAGE>
-iv-
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . . . . . . . 40
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . 41
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof . . . . . . . . 42
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, Etc. . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . 42
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate,
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.8 Conflicting Interests . . . . . . . . . . . . . . . . 43
SECTION 6.9 Persons Eligible for Appointment as Trustee . . . . . 43
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . 45
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.13 Preferential Collection of Claims Against the
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . 47
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . 49
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.3 Holders to Be Treated as Owners . . . . . . . . . . . 50
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . 50
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . 51
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . 54
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . 54
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 55
<PAGE>
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions . . . . . . . . . . 55
SECTION 9.2 Successor Corporation Substituted . . . . . . . . . . 55
SECTION 9.3 Opinion of Counsel Delivered to Trustee . . . . . . . 56
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . 56
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . 61
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . . . . . . . . 62
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . 62
SECTION 10.6 Reinstatement . . . . . . . . . . . . . . . . . . . 62
SECTION 10.7 Excess Funds . . . . . . . . . . . . . . . . . . . . 63
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability . . . . . . . . . 63
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons . . . . . . . . 63
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders
of Securities and Coupons . . . . . . . . . . . . . . . . . . 64
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . . . . . . 65
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . 66
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . 66
SECTION 11.8 New York Law to Govern . . . . . . . . . . . . . . . 66
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . 66
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . . . 66
SECTION 11.11 Securities in a Foreign Currency or in ECU . . . . 66
SECTION 11.12 Judgment Currency . . . . . . . . . . . . . . . . . 67
<PAGE>
-vi-
ARTICLE TWELVE
REDEMPTION OF SECURITIES; SINKING FUNDS AND OPTION
TO PURCHASE ON CHANGE OF CONTROL
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . 68
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . 68
SECTION 12.3 Payment of Securities Called for Redemption . . . . 70
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption . . . . . . . . . . . . . . . . 71
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . . . 71
SECTION 12.6 Purchase of Securities by the Issuer at Option of
the Holder upon Change of Control . . . . . . . . . . . . . . 73
SECTION 12.7 Effect of Change of Control Purchase Notice;
Withdrawal Notice . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.8 Securities Purchased in Part . . . . . . . . . . . . 76
SECTION 12.9 Covenant to Comply with Securities Laws upon
Purchase of Securities . . . . . . . . . . . . . . . . . . . 76
ARTICLE THIRTEEN
CONVERSION
SECTION 13.1 Conversion Privilege . . . . . . . . . . . . . . . . 77
SECTION 13.2 Conversion Procedure; Rescission of Conversion;
Conversion Price; Fractional Shares . . . . . . . . . . . . . 77
SECTION 13.3 Adjustment of Conversion Price for Common Stock . . 78
SECTION 13.4 Consolidation or Merger of the Issuer . . . . . . . 83
SECTION 13.5 Notice of Adjustment . . . . . . . . . . . . . . . . 84
SECTION 13.6 Notice in Certain Events . . . . . . . . . . . . . . 85
SECTION 13.7 Issuer to Reserve Stock; Registration; Listing . . . 86
SECTION 13.8 Taxes on Conversion . . . . . . . . . . . . . . . . 86
SECTION 13.9 Conversion After Record Date . . . . . . . . . . . . 86
SECTION 13.10 Corporate Action Regarding Par Value of Common
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 13.11 Issuer Determination Final . . . . . . . . . . . . 87
SECTION 13.12 Trustee's Disclaimer . . . . . . . . . . . . . . . 87
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
<PAGE>
THIS INDENTURE dated as of July 10, 1995, between ALEX. BROWN
INCORPORATED, a Maryland corporation (the "Issuer"), and CHEMICAL BANK, as
trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance with
the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make the Securities, when
executed by the Issuer and authenticated and delivered by the Trustee
hereunder and duly issued by the Issuer, the valid obligations of the
Issuer and to make this Indenture a valid indenture and agreement of the
Issuer according to their and its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities and of the Coupons,
if any, appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the Securities
Act of 1933 are referred to in the Trust Indenture Act of 1939, including
terms defined therein by reference to the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
<PAGE>
2
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"Affiliate" means, with respect to any specified person, 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 or cause the direction of 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.
"Alex. Brown" means Alex. Brown & Sons Incorporated, a wholly
owned subsidiary of the Issuer.
"Associate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
"Authenticating Agent" shall have the meaning set forth in
Section 6.14.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable,
be the Financial Times (London Edition) and, in the case of Luxembourg,
will, if practicable, be the Luxemburger Wort) published in an official
language of the country of publication customarily published at least once
a day for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or Luxembourg, as
applicable. If it shall be impractical in the opinion of the Trustee to
make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to by the Board of Directors and to be in
full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in
the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to
close.
<PAGE>
3
"Change of Control" shall be deemed to have occurred at such time
as any of the following events shall occur:
(i) there shall be consummated any consolidation or merger of
the Issuer (a) in which the Issuer is not the continuing or surviving
corporation or (b) pursuant to which the Common Stock would be
converted into cash, securities or other property, other than, in the
case of either (a) or (b), a consolidation or merger of the Issuer in
which the holders of Common Stock immediately prior to such
consolidation or merger have at least a majority, directly or
indirectly, of the common stock of the resulting or surviving
corporation immediately after such consolidation or merger; or
(ii) there shall be consummated any merger or consolidation
between Alex. Brown and any other Person (other than the Issuer or a
wholly owned subsidiary thereof) or a sale, lease or conveyance of all
or substantially all of its assets to any other Person; or
(iii) there is a report filed on Schedule 13D or 14D-1 (or
any successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any person (for the purposes of this definition only,
as the term "person" is used in Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act or any successor provision to either of the
foregoing but excluding any one or more persons or group of persons
which are, or, in the ordinary course of business, will become
principals or managing directors of the Issuer or any Subsidiary) has
become the beneficial owner, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions, of shares of capital stock of the Issuer entitling such
person to exercise more than 50% of the total voting power of all
shares of capital stock of the Issuer entitling the holders thereof to
voting generally in elections of directors. Notwithstanding the
foregoing, a Change of Control shall not be deemed to have occurred by
virtue of the Issuer, any Subsidiary, any employee stock ownership
plan or any other employee benefit plan of the Issuer or any
Subsidiary, or any person holding Common Stock for or pursuant to the
terms of any such employee benefit plan, filing or becoming obligated
to file a report under or in respect of Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report) under the Exchange Act
disclosing beneficial ownership by it of shares of Common Stock
whether in excess of 50% or otherwise. For purposes of this
paragraph (iii), the phrase "in the ordinary course of business"
includes, without limitation, the hiring of any managing director or
principal as an employee to engage in the conduct of an existing or
proposed business of the Issuer or any Subsidiary; or
(iv) any other Change of Control provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series;
<PAGE>
4
provided, however, that a Change of Control shall not be deemed to have
occurred if (x) the Closing Price for each of any five trading days within
the period of ten consecutive trading days ending immediately after the
later of the Change of Control or the public announcement of the Change of
Control (in case of a Change of Control under clause (iii) above) or ending
immediately before the Change of Control (in the case of a Change of
Control under clause (i) above) shall equal or exceed 105% of the
Conversion Price of the Securities in effect on each such trading day or
(y) all of the consideration (excluding cash payments for fractional
shares) in the transaction or series of transactions constituting the
Change of Control consists of shares of common stock traded on a national
securities exchange or quoted on the NASDAQ National Market System and, as
a result of such transaction or series of transactions, the Securities
become convertible solely into such common stock (excluding cash payments
for fractional shares) and the closing price of the consideration paid or
received for each share of Common Stock shall equal or exceed 105% of the
Conversion Price of the Securities for each of any five trading days within
the period of ten consecutive trading days immediately following the
closing date of such transaction or the last transaction of such series of
such transactions, as the case may be. A "beneficial owner" shall be
determined in accordance with Rule 13d-3 promulgated by the Commission
under the Exchange Act, as in effect on the date of execution of this
Indenture, except that, for purposes of the definition of Change of
Control, the number of shares of capital stock of the Issuer entitling the
holders thereof to vote generally in elections of directors shall be deemed
to include, in addition to all outstanding shares of capital stock of the
Company entitling the holders thereof to vote generally in the election of
directors and Unissued Shares of the Person with respect to which the
Change of Control determination is being made, all Unissued Shares of all
other Persons. As used herein, "Unissued Shares" shall mean shares of
capital stock of the Issuer not outstanding that are subject to options,
warrants, rights to purchase or conversion privileges exercisable within 60
days following the date of determination of a Change of Control and that,
upon issuance, shall entitle the holders thereof to vote generally in the
election of directors.
"Change of Control Purchase Date" means the date that is 40
Business Days after the occurrence of a Change of Control.
"Change of Control Purchase Notice" shall have the meaning set
forth in Section 12.6(c).
"Change of Control Purchase Price" means an amount in cash equal
to 100% of the principal amount in respect of a Security for which a Change
of Control Purchase Notice has been delivered plus accrued unpaid interest
to the Change of Control Purchase Date, or such other amount as may be
provided in the supplemental indenture under which such series of
Securities is issued or in the form of Security for such series.
"Closing Price" means the last reported sale price of the Common
Stock (regular way) as shown on the Composite Tape of the NYSE (or, if such
<PAGE>
5
stock is not listed or admitted to trading on the NYSE, on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading), or, in case no such sale takes place on such day, the
average of the closing bid and asked prices on the NYSE (or, if such stock
is not listed or admitted to trading on the NYSE, on the principal national
securities exchange on which such stock is listed or admitted to trading),
or, if it is not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as reported by
the National Association of Securities Dealers Automated Quotation System
(NASDAQ), or if the Common Stock is not so reported, the average of the
closing bid and asked prices as furnished by any member of the National
Association of Securities Dealers, Inc., selected from time to time by the
Issuer for that purpose.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such date.
"Common Stock" means the class of Common Stock, par value $.10
per share, of the Issuer authorized at the date of this Indenture as
originally signed, or any other class of stock resulting from successive
changes or reclassifications of such Common Stock, and in any such case
including any shares thereof authorized after the date of this Indenture,
and any other shares of stock of the Issuer which do not have any priority
in the payment of dividends or upon liquidation over any other class of
stock.
"Conversion Agent" means any Person authorized by the Issuer to
receive Securities to be converted into Common Stock on behalf of the
Issuer. The Issuer initially authorizes the Trustee to act as Conversion
Agent for the Securities on its behalf. The Issuer may at any time and
from time to time authorize one or more Persons to act as Conversion Agent
in addition to or in place of the Trustee with respect to any series of
Securities issued under this Indenture.
"Conversion Price" means, with respect to any series of
Securities which are convertible into Common Stock, the price per share of
Common Stock at which the Securities of such series are so convertible as
set forth in the Board Resolution or Officer's Certificate with respect to
such series pursuant to Section 2.3 (or in any supplemental indenture
entered into pursuant to Section 8.1(g) with respect to such series), as
the same may be adjusted from time to time in accordance with Section 13.3
(or such supplemental indenture).
"Converting Holder" shall have the meaning specified in
Section 13.2(c) of this Indenture.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
<PAGE>
6
be principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Coupon" means any interest coupon appertaining to a Security.
"Covenant Defeasance" shall have the meaning set forth in Section
10.1(C).
"Current Market Price" means, on any date, the average of the
daily Closing Prices per share of Common Stock for any 30 consecutive
Trading Days selected by the Issuer prior to the day in question, which 30
consecutive Trading Day period shall not commence more than 45 Trading Days
prior to the day in question; provided that with respect to Section
13.3(c), the "Current Market Price" of the Common Stock shall mean the
average of the daily Closing Prices per share of Common Stock for the five
consecutive Trading Days ending on the date of the distribution referred to
in Section 13.3(c) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Issuer pursuant to Section 2.3
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with
respect to the Securities of any such series shall mean the Depositary with
respect to the Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as such
in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, as in force at the date of which this Indenture was originally
executed.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person
in whose name such Security is registered in the security register kept by
the Issuer for that purpose in accordance with the terms hereof, and (b) in
<PAGE>
7
the case of any Unregistered Security or any Coupon, the bearer of such
Security or Coupon, as the case may be.
"Indebtedness" shall have the meaning set forth in Section 5.1.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Issuer" means Alex. Brown Incorporated, a Maryland corporation,
and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president or the treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"NYSE" means the New York Stock Exchange.
"Officer's Certificate" means a certificate signed by the
chairman of the Board of Directors, the president or the treasurer of the
Issuer and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 11.5, to the extent applicable.
"Opinion of Counsel" means an opinion in writing signed by the
General Counsel of the Issuer, or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall include the statements provided for in
Section 11.5, to the extent applicable.
"Original Issue Date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.1.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under this
Indenture, except:
<PAGE>
8
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government obligations (as provided
for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the
Issuer) or shall have been set aside, segregated and held in trust by
the Issuer for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1.
"Paying Agent" means any Person authorized by the Issuer with
respect to the Securities of any series to perform the functions set forth
in Section 3.4. The Issuer initially authorizes the Trustee to act as
Paying Agent for the Securities on its behalf. The Issuer may at any time
and from time to time authorize one or more Persons to act as Paying Agent
in addition to or in place of the Trustee with respect to any series of
Securities issued under this Indenture.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the
stated maturity or maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by the Issuer or its agents
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
<PAGE>
9
"Permitted Liens" shall have the meaning set forth in
Section 3.6.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include (i) "and
premium, if any" and (ii) the purchase price thereof payable by the Issuer
upon any mandatory repurchase from a Holder pursuant to the terms of such
Securities or this Indenture.
"Record Date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend
prescribed in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in Section
11.12.
"Responsible Officer" when used with respect to the Trustee means
the chairman of the Board of Directors, any vice chairman of the Board of
Directors, the chairman of the trust committee thereof, the chairman of the
executive committee thereof, any vice chairman of the executive committee
thereof, the president, any vice president (whether or not designated by
numbers or words added before or after the title "vice president"), the
cashier, the secretary, the treasurer, any senior trust officer, any trust
officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have
been authenticated and delivered under this Indenture.
"Subsidiary" shall have the meaning set forth in Section 3.6.
"Trading Day" means, with respect to the Common Stock, so long as
the Common Stock is listed or admitted to trading on the NYSE, a day on
which the NYSE is open for the transaction of business, or, if the Common
Stock is not listed or admitted to trading on the NYSE, a day on which the
principal national securities exchange on which the Common Stock is listed
is open for the transaction of business, or, if the Common Stock is not
listed or admitted for trading on any national securities exchange, a day
<PAGE>
10
on which the NASDAQ National Market is open for the transaction of
business.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also 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 the Securities of such
series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Voting Security" means securities of the class or classes having
general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such
corporation, provided that, for the purposes hereof, securities which carry
only the right to vote conditionally on the happening of an event shall not
be considered Voting Securities whether or not such event shall have
happened.
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and
the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officer's Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have
imprinted or otherwise reproduced thereon, such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations
<PAGE>
11
pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers
executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-
mentioned Senior Indenture.
_________________________,
as Trustee
By_______________________
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Securities of such
series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication to be borne by the Securities of
each such series, an alternative certificate of authentication
substantially as follows:
"This is one of the Securities referred to in the within-
mentioned Senior Indenture.
___________________________,
as Authenticating Agent
By_________________________
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. Except as
otherwise may be provided in an indenture supplemental hereto, the
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and the
Securities of each such series shall rank equally and pari passu with all
<PAGE>
12
other unsecured and unsubordinated debt of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and, to the
extent established pursuant to rather than set forth in a Board Resolution,
in an Officer's Certificate detailing such establishment) or established in
one or more indentures supplemental hereto, prior to the initial issuance
of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and (in
the case of Registered Securities) on which a record shall be taken
for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be
determined;
(6) the place or places where the principal of and any interest
on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon
which Securities of the series may be redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or pursuant to Section 12.6 or at
the option of a Holder thereof and the price or prices at which and
the period or periods within which and any terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
<PAGE>
13
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities
of that series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of such series shall
be payable;
(12) if the principal of or interest on the Securities of such
series is to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities
are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated or upon any other type of
index, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
<PAGE>
14
(17) any trustees, depositories, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(18) any other events of default or covenants with respect to the
Securities of such series;
(19) whether the Securities are convertible into Common Stock
pursuant to Article Thirteen and the initial conversion price;
(20) the terms and conditions of conversion into Common Stock of
the Securities of any series which are convertible into Common Stock,
if different from those set forth in Article Thirteen; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case
of Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer's Certificate
referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution, such
Officer's Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in
this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from
time to time by an Issuer Order. The maturity date, Original Issue Date,
interest rate and any other terms of the Securities of such series and
Coupons, if any, appertaining thereto shall be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below, only at or before
the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully
protected in relying upon, unless and until such documents have been
superseded or revoked:
<PAGE>
15
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are
not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by an Issuer Order, (c) the maturity date or dates, Original
Issue Date or dates, interest rate or rates and any other terms of
Securities of such series shall be determined by an Issuer Order or
pursuant to such procedures and (d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Issuer
or its duly authorized agent or agents, which oral instructions shall
be promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons,
if any, were established;
(3) an Officer's Certificate setting forth the form or forms and
terms of the Securities and Coupons, if any, stating that the form or
forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the
provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in con-
formity with the provisions of this Indenture, and, in the case
of a Periodic Offering, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officer's
Certificate or a supplemental indenture in accordance with this
Indenture, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have
been established, all such terms will have been duly authorized
by the Issuer and will have been established in conformity with
the provisions of this Indenture;
<PAGE>
16
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to
and duly paid for by the purchasers thereof, they will have been
duly issued under this Indenture and will be valid and legally
binding obligations of the Issuer, enforceable in accordance with
their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any provision
of applicable law or the certificate of incorporation or by-laws
of the Issuer or any agreement or other instrument binding upon
the Issuer that is material to the Issuer or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Issuer, and no consent, approval or authorization of any
governmental body or agency is required for the performance by
the Issuer of its obligations under the Securities and Coupons,
if any, except such as are specified and have been obtained and
such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the
Securities and Coupons, if any.
<PAGE>
17
In rendering such opinions, such counsel may qualify any opinions
as to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). Such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the
State of New York and the federal law of the United States, upon opinions
of other counsel (copies of which shall be delivered to the Trustee), who
shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as such
opinion involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of the Issuer and its Subsidiaries
and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or board
of trustees, executive committee, or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or would
affect the Trustee's own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the Trustee
shall, in accordance with this Section and the Issuer Order with respect to
such series, authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
series issued and not yet cancelled, (ii) shall be registered in the name
of the Depositary for such Registered Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in definitive registered
form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
<PAGE>
18
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of
the Issuer by the chairman of its Board of Directors or its president or
its treasurer, under its corporate seal (except in the case of Coupons)
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal
of the Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of
the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer before
the Security or Coupon so signed (or the Security to which the Coupon so
signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed
such Security or Coupon had not ceased to be such officer of the Issuer;
and any Security or Coupon may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security or Coupon,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.6 Certificate of Authentication. Only such Securities
as shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by the Trustee by the manual signature
of one of its authorized officers, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. No Coupon shall
be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities
of any series, if not so established, in denominations of $1,000 and any
integral multiple thereof. If denominations of Unregistered Securities of
any series are not so established, such Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same
<PAGE>
19
may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in
or pursuant to the Board Resolution or Officer's Certificate or in the
indenture supplemental hereto referred to in Section 2.3. The Securities of
each series shall bear interest, if any, from the date, and such interest
shall be payable on the dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any Record Date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer, exchange or conversion of such
Registered Security subsequent to the Record Date and prior to such
interest payment date, except if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the persons
in whose names Outstanding Registered Securities for such series are
registered at the close of business on a subsequent Record Date (which
shall be not less than five Business Days prior to the date of payment of
such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Registered Securities not less than
15 days preceding such subsequent Record Date. The term "Record Date" as
used with respect to any interest payment date (except a date for payment
of defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar
month, the 15th day of the next preceding calendar month or, if such
interest payment date is the 15th day of a calendar month, the first day of
such calendar month, whether or not such Record Date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each series of Securities a register or
registers in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Registered Securities of
such series and the registration of transfer of Registered Securities of
such series. Such register shall be in written form in the English
language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered
Securities of the same series, maturity date, interest rate and Original
<PAGE>
20
Issue Date in authorized denominations for a like aggregate principal
amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by
delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Issuer that shall be main-
tained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities
of any series, maturity date, interest rate and Original Issue Date are
issued in more than one authorized denomination, except as otherwise
specified pursuant to Section 2.3, such Unregistered Securities may be
exchanged for Unregistered Securities of such series having the same
maturity date, interest rate and Original Issue Date having authorized
denominations and an equal aggregate principal amount, upon surrender of
such Unregistered Securities to be exchanged at the agency of the Issuer
that shall be maintained for such purpose in accordance with Section 3.2 or
as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all
matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Unless
otherwise specified pursuant to Section 2.3, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer provided
for in this Indenture shall be promptly cancelled and disposed of by the
Trustee and the Trustee will deliver a certificate of disposition thereof
to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption, conversion or payment shall (if so required by the
<PAGE>
21
Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by the Holder or his attorney duly authorized
in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being
called for redemption, in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed
or (c) any Securities surrendered for conversion.
Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary, or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered Securities.
If a successor Depositary for such Registered Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.3 that such Registered Securities be represented by one or more
Registered Global Securities shall no longer be effective and the Issuer
will execute, and the Trustee, upon receipt of an Officer's Certificate for
the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or
more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event, the Issuer will
execute, and the Trustee, upon receipt of an Officer's Certificate for the
<PAGE>
22
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive
registered form without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities, in
exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect
to Securities represented by a Registered Global Security, the Depositary
for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Securities of the same series
in definitive registered form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon, the Issuer shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary, a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities
in definitive registered form without coupons, in authorized denominations,
such Registered Global Security shall be cancelled by the Trustee or an
agent of the Issuer or the Trustee. Securities in definitive registered
form without Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to, or as
directed by, the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely
on an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such
exchange would result in adverse United States federal income tax
consequences to the Issuer (such as, for example, the inability of the
<PAGE>
23
Issuer to deduct from its income, as computed for United States federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute and,
upon the written request of any officer of the Issuer, the Trustee shall
authenticate and deliver a new Security of the same series, maturity date,
interest rate and Original Issue Date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security or in lieu of and in
substitution for the Security so destroyed, lost or stolen, with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons
so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save
each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons
to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee or its
agent) connected therewith. In case any Security or Coupon which has
matured or is about to mature or has been called for redemption in full
shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same or the relevant Coupon (without surrender thereof
except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as
any of them may require to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the
Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security or
Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant
to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time
<PAGE>
24
enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or
Coupons of such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced
or destroyed, lost or stolen Securities and Coupons and shall preclude any
and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, conversion or exchange, or for credit against any
payment in respect of a sinking or analogous fund, if surrendered to the
Issuer or any agent of the Issuer or the Trustee or any agent of the
Trustee, shall be delivered to the Trustee or its agent for cancellation
or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee or its
agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its
agent shall acquire any of the Securities or Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same are
delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without coupons, or as
Unregistered Securities with or without Coupons attached thereto, of any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may
contain such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay, the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
<PAGE>
25
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver, in exchange for such temporary Securities of such
series, an equal aggregate principal amount of definitive Securities of the
same series having authorized denominations and, in the case of
Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations
on the issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially be issued
in the form of a single global Unregistered Security to be delivered to a
depositary or agency located outside the United States and the procedures
pursuant to which definitive or global Unregistered Securities of such
series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it
will duly and punctually pay or cause to be paid the principal of, and
interest on, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The principal of and interest on Securities with Coupons
attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and
surrender of such Securities on the maturity date (in the case of
principal) and the several Coupons for such interest installments as are
evidenced thereby as they severally mature (in the case of interest). If
any temporary Unregistered Security provides that interest thereon may be
paid while such Security is in temporary form, the interest on any such
temporary Unregistered Security (together with any additional amounts
payable pursuant to the terms of such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any,
only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities
for notation thereon of the payment of such interest, in each case subject
to any restrictions that may be established pursuant to Section 2.3. The
interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to
or upon the written order of the Holders thereof and, at the option of the
Issuer, may be paid by wire transfer or by mailing checks for such interest
payable to or upon the written order of such Holders at their last
addresses as they appear on the registry books of the Issuer.
<PAGE>
26
SECTION 3.2 Offices for Payments, Etc. So long as any
Registered Securities are authorized for issuance pursuant to this
Indenture or are outstanding hereunder, the Issuer will maintain in the
Borough of Manhattan, The City of New York, an office or agency where the
Registered Securities of each series may be presented for payment, where
the Securities of each series may be presented for exchange as is provided
in this Indenture, where the Securities may be presented for conversion,
and where the Registered Securities of each series may be presented for
registration of transfer as provided in this Indenture.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in
which such an agency is required to be maintained under the rules of any
stock exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the
United States nor will any payment be made by transfer to an account in, or
by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, The City of
New York if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location
thereof. In case the Issuer shall fail to maintain any agency required by
this Section to be located in the Borough of Manhattan, The City of New
York, or shall fail to give such notice of the location or of any change in
the location of any of the above agencies, presentations and demands may be
made and notices may be served at the Corporate Trust Office of the
Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of
that series may be presented for exchange, where the Securities may be
presented for conversion, as provided in this Indenture and where the
Registered Securities of that series may be presented for registration of
transfer as provided in this Indenture, and the Issuer may from time to
<PAGE>
27
time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall
in any manner relieve the Issuer of its obligation to maintain the agencies
provided for in this Section 3.2. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
the Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series, or Coupons
appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and
(unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons appertaining thereto a sum suffi-
cient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
<PAGE>
28
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before April 1st, in each year (beginning with
1996) an Officer's Certificate (which need not comply with Section 11.5) as
to whether or not to the best knowledge of the signer thereof the Issuer is
in default in the performance and observance of the terms, provisions,
covenants and conditions of this Indenture (without regard to any period of
grace or requirements of notice provided hereunder) and if the Issuer shall
be in default, specifying all such defaults and the nature and status
thereof of which the signer may have knowledge. The signatory to such
Officer's Certificate shall be the principal executive officer, principal
financial officer or principal accounting officer of the Issuer.
SECTION 3.6 Negative Pledge. Neither the Issuer nor any
successor corporation will, or will permit any Subsidiary (as hereinafter
defined) to, create, assume, incur, guarantee or suffer to exist any
indebtedness for borrowed money secured by a pledge, lien or other
encumbrance (except for Permitted Liens, as hereinafter defined) on the
Voting Securities of Alex. Brown & Sons Incorporated, a Maryland
corporation and a wholly owned Subsidiary of the Issuer, unless the Issuer
shall cause the Securities to be secured equally and ratably with (or, at
the Issuer's option, prior to) any indebtedness secured thereby.
"Subsidiary" means any corporation, partnership or other entity of which at
the time of determination the Issuer owns or controls directly or
indirectly more than 50% of the Voting Securities thereof or equivalent
interest therein. "Permitted Liens" means involuntary liens for taxes or
assessments or governmental charges or levies that are not then due and
delinquent or the validity of which is being contested in good faith or
which are less than $1,000,000 in amount, liens created by or resulting
from any litigation or legal proceeding which is currently being contested
in good faith by appropriate proceedings or which involve claims of less
than $1,000,000 and such other liens which involve claims or secure
indebtedness which in the aggregate are less than $1,000,000 in amount.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2,
10.4, 12.2, 12.5, 13.5 or 13.6 or Section 310 (b) of the Trust Indenture
Act of 1939, the party making such publication in the Borough of Manhattan,
The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officer's
Certificate delivered to such party, make a similar publication in
Luxembourg.
<PAGE>
29
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Registered
Securities of each series:
(a) semiannually and not more than 15 days after each Record
Date for the payment of interest on such Registered Securities, as
hereinabove specified, as of such Record Date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered
Securities in each year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a
date not more than 15 days prior to the time such information is
furnished,
provided that, if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of any series are
Registered Securities, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the Holders of each series of Registered Securities (i) contained in the
most recent list furnished to it as provided in Section 4.1, (ii) received
by it in the capacity of Security registrar for such series, if so acting,
and (iii) filed with it within two preceding years pursuant to subsection
4.4(c)(ii). The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to
the Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application,
and such application states that the applicants desire to communicate with
other Holders of Securities of a particular series (in which case the
applicants must all hold Securities of such series) or with Holders of all
Securities with respect to their rights under this Indenture or under such
Securities and such application is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
<PAGE>
30
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Registered Securities of such series or of all Registered
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section, and as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each Securityholder of such series or all Holders
of Registered Securities, as the case may be, whose name and address
appears in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.2 a copy
of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender,
the Trustee shall mail to such applicants and file with the Commission
together with a copy of the material to be mailed, a written statement to
the effect that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Registered Securities of
such series or of all Registered Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all
the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee nor any agent of the Issuer or the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
<PAGE>
31
SECTION 4.3 Reports by Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Issuer
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or if the Issuer is not required to
file information, documents, or reports pursuant to either of such
Sections, then to file with the Trustee, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents, and reports
which may be required pursuant to Section 13 of the Exchange Act, in
respect of a debt security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) to file with the Trustee and the Commission, as required by
the rules and regulations prescribed from time to time by the
Commission, such additional information, documents, and reports with
respect to compliance by the Issuer with the conditions and covenants
provided for in this Indenture as may be required from time to time by
such rules and regulations; and
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 4.4(c), such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to subsections (a) and (b) of this Section as may be required
to be transmitted to such Holders by rules and regulations prescribed
from time to time by the Commission.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall
transmit to the Securityholders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust
Indenture Act of 1939 at the times provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than May 15 in each
calendar year, commencing in 1996 and shall be dated as of a date
convenient to the Trustee no more than 60 days prior thereto.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Registered Securities, as the names and
addresses of such Holders appear upon the registry books of the
Issuer;
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32
(ii) to such other Holders of Securities as have, within two
years preceding such transmission, filed their names and addresses
with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to Section
313(b) of the Trust Indenture Act of 1939, to each Holder of a
Security whose name and address are preserved at the time by the
Trustee as provided in Section 4.2(a).
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by
the Trustee with each stock exchange upon which the Securities of any
applicable series are listed and also with the Commission. The Issuer
agrees to notify the Trustee with respect to any series when and as the
Securities of such series become admitted to trading on any national
securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any
series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of all or any part of the principal
of any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in
the Securities of such series (other than a covenant or warranty in
respect of the Securities of such series a default in the performance
or breach of which is elsewhere in this Section 5.1 specifically dealt
with) or in this Indenture contained for a period of 60 days after the
date on which written notice specifying such failure, stating that
such notice is a "Notice of Default" hereunder and demanding that the
Issuer remedy the same, shall have been given by registered or
<PAGE>
33
certified mail, return receipt requested, to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of all
series affected thereby; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Issuer or for any substantial part of its property or ordering the
winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(e) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or for any
substantial part of its property, or make any general assignment for
the benefit of creditors; or
(f) failure by the Issuer to make any payment at maturity,
including any applicable grace period, in respect of indebtedness,
which term as used herein means obligations (other than the Securities
of any series or non-recourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments ("Indebtedness") in an
amount in excess of $10,000,000 or the equivalent thereof in any other
currency or composite currency and such failure shall have continued
for a period of 30 days after written notice thereof shall have been
given by registered or certified mail, return receipt requested, to
the Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities (treated as one class); or
(g) any other default with respect to any Indebtedness, which
default results in the acceleration of Indebtedness in an amount in
excess of $10,000,000 or the equivalent thereof in any other currency
or composite currency without such Indebtedness having been discharged
or such acceleration having been cured, waived, rescinded or annulled
for a period of 30 days after written notice thereof shall have been
given by registered or certified mail, return receipt requested, to
the Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities (treated as one class); or
<PAGE>
34
(h) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series;
provided that, if any such failure, default or acceleration referred to in
clauses (f) or (g) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon cured.
If an Event of Default described in clause (a), (b), (c) or (h)
(if the Event of Default under clause (c) or (h), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs
and is continuing, then, and in each and every such case, except for any
series of Securities the principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of each such affected series
then Outstanding hereunder (voting as a single class) by notice in writing
to the Issuer (and to the Trustee if given by Securityholders), may declare
the entire principal (or, if the Securities of any such affected series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all Securities of all such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause
(c) or (h) (if the Event of Default under clause (c) or (h), as the case
may be, is with respect to all series of Securities then Outstanding), (d),
(e), (f) or (g) occurs and is continuing, then and in each and every such
case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or,
if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof) of all the
Securities then Outstanding, and interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all
the Securities, as the case may be) shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the Issuer
shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the principal of
any and all Securities of each such series (or of all the Securities, as
the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that payment of such
<PAGE>
35
interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trus-
tee except as a result of negligence or bad faith, and if any and all
Events of Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein then and
in every such case the Holders of a majority in aggregate principal amount
of all the Securities of each such series or of all the Securities, in each
case voting as a single class, then Outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue
Discount Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a result of
such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default
shall be made in the payment of all or any part of the principal of any of
the Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders
of the Securities of such series the whole amount that then shall have
become due and payable on all Securities of such series, and such Coupons,
for principal or interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
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36
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and any expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Issuer or other obligor upon the Securities and collect in the manner
provided by law out of the property of the Issuer or other obligor upon the
Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency
or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor, or in the case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other
obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such
other obligor;
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37
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement, reor-
ganization, liquidation or other bankruptcy or insolvency proceedings
or person performing similar functions in comparable proceedings; and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments directly to
the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person and be a
member of a creditors or other similar committee.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining to such Securities, may be enforced by the Trustee without the
possession of any of the Securities of such series or Coupons appertaining
to such Securities or the production thereof on any trial or other
proceedings relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Securities or Coupons appertaining to such
Securities with respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities or Coupons appertaining to
such Securities parties to any such proceedings.
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38
SECTION 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be
applied in the following order at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys on account of principal or
interest, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such series in reduced principal amounts in exchange
for the presented Securities of like series if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith and
all amounts owing to the Trustee under Section 6.6;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal,
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal, and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
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39
SECTION 5.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee,
then, and in every such case, the Issuer and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been
taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder
of any Security of any series or of any Coupon appertaining thereto shall
have any right by virtue or by availing of any provision of this Indenture
to institute any action or proceeding at law or in equity or in bankruptcy
or otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the
continuance thereof as hereinbefore provided, and unless also the Holders
of not less than 25% in aggregate principal amount of the Securities of
each affected series then Outstanding (treated as a single class) shall
have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee
for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and
no direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 5.9; it being understood and intended,
and being expressly covenanted by the Holder of every Security or Coupon
with every other Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall
have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit
of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
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40
provisions of this Section, each and every Holder of any Security or Coupon
and the Trustee shall be entitled to such relief as can be given either at
law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and
any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security
or Coupon on or after the respective due dates expressed or provided for in
such Security or Coupon, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6 and the last
paragraph of Section 2.9, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or Coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such Event
of Default or an acquiescence therein; and, subject to Section 5.6, every
power and remedy given by this Indenture or by law to the Trustee or to the
Holders of Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the provisions of
this Indenture and provided further that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that
the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee
shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so
<PAGE>
41
determine that the actions or forebearances specified in or pursuant to
such direction would be unduly prejudicial to the interests of Holders of
the Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which
is not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the acceleration
of the maturity of any Securities as provided in Section 5.1, the Holders
of a majority in aggregate principal amount of the Securities of all series
at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may, on behalf
of the Holders of all such Securities, waive any past default or Event of
Default described in Section 5.1 and its consequences, except a default in
the payment of the principal of or interest on any Security of such series
or in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In
the case of any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured, and not to
have occurred for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section 3.7, at least
once in an Authorized Newspaper in Luxembourg) and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in
Section 4.4(c), unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for
the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become,
an Event of Default); provided that, except in the case of default in the
payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking fund installment on such series,
the Trustee shall be protected in withholding such notice if and so long as
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42
the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of
the Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to
Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Securityholder or group of Securityholders of
any series holding in the aggregate more than 10% in aggregate principal
amount of the Securities of such series, or, in the case of any suit
relating to or arising under clause (c) or (h) of Section 5.1 (if the suit
relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (c)
or (h) (if the suit under clause (c) or (h) relates to all the Securities
then Outstanding), (d), (e), (f) or (g) of Section 5.1, 10% in aggregate
principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series and
after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to the Securities of a series has occurred
(which has not been cured or waived), the Trustee shall exercise with
respect to such series of Securities such of the rights and powers vested
in it by this Indenture, and shall use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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43
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with respect
to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the state-
ments and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the
case of any such statements, certificates or opinions which by
any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders pursuant to Section 5.9 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable
ground for believing that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
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44
SECTION 6.2 Certain Rights of the Trustee. Subject to Section
6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
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45
every such investigation shall be paid by the Issuer or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, Etc. The Trustee or any agent of the Issuer or the Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and, subject to Sections 6.8 and 6.13, may otherwise
deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or
such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions
of Section 10.4 hereof, all moneys received by the Trustee shall, until
used or applied as provided herein, be held in trust for the purposes for
which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the
Trustee nor any agent of the Issuer or the Trustee shall be under any
liability for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon
its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other
persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Issuer also
covenants to indemnify the Trustee and each predecessor Trustee for, and to
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46
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 this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in the premises.
The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or
Coupons, and the Securities are hereby subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate,
Etc. Subject to Sections 6.1 and 6.2, whenever in the administration of
the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officer's Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture
Act of 1939, 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 of 1939 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 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United
States of America or of any state or the District of Columbia having a
combined capital and surplus of at least $100,000,000, and which is
authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of
Columbia authority and which is otherwise eligible to act as Trustee under
Section 310(a) of the Trust Indenture Act of 1939. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
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47
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (i) if
any Unregistered Securities of a series affected are then Outstanding, by
giving notice of such resignation to the Holders thereof, by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, and at least once in an Authorized Newspaper in London (and,
if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), (ii) if any Unregistered Securities of a series affected are
then Outstanding, by mailing notice of such resignation to the Holders
thereof who have filed their names and addresses with the Trustee pursuant
to Section 4.4(c)(ii) at such addresses as were so furnished to the Trustee
and (iii) by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at their
addresses as they shall appear on the registry books. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee or trustees. If no successor trustee
shall have been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of resignation,
the resigning trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee, or any Securityholder who has been
a bona fide Holder of a Security or Securities of the applicable series for
at least six months may, subject to the provisions of Section 5.12, on
behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator of the Trustee or of its
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48
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 5.12, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed
and to the Issuer the evidence provided for in Section 7.1 of the action in
that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute
and deliver to the Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee
for such series hereunder; but, nevertheless, on the written request of the
Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it hereunder and
shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of
any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
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49
property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series, shall execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and
that each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the
time of such acceptance such successor trustee shall be qualified under the
provisions of Section 6.8 and Section 310(b) of the Trust Indenture Act of
1939 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (a) if
any Unregistered Securities of a series affected are then Outstanding, to
the Holders thereof, by publication of such notice at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if required by
Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (b)
if any Unregistered Securities of a series affected are then Outstanding,
to the Holders thereof who have filed their names and addresses with the
Trustee pursuant to Section 4.4(c)(ii), by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the
Trustee shall make such information available to the Issuer for such
purpose) and (c) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called
for by the preceding sentence may be combined with the notice called for by
Section 6.10. If the Issuer fails to give such notice within ten days
after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
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50
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation shall be qualified under
the provisions of Section 6.8 and Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificate shall have the full force which it
is anywhere in the Securities of such series or in this Indenture provided
that the certificate of the Trustee shall have; provided that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of the
Issuer (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act of 1939 regarding the
collection of claims against the Issuer (or any such other obligor). For
purposes of Section 311(b)(4) and (6) of the Trust Indenture Act of 1939:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred
by the Issuer (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Issuer (or any such
obligor) arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation.
SECTION 6.14 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
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51
authenticating agent (the "Authenticating Agent") which shall be authorized
to act on behalf of the Trustee to authenticate Securities, including
Securities issued upon exchange, registration of transfer, partial
redemption or pursuant to Section 2.9. Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee. Whenever reference is made in
this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to 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 for such series and a
Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United
States of America or of any state, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by federal or state
authority.
Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which
it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
Any Authenticating Agent may at any time, and if it shall cease
to be eligible shall, resign by giving written notice of resignation to the
Trustee and to the Issuer. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14 with respect to one or more series of
Securities, the Trustee shall, upon receipt of an Issuer Order, appoint a
successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. The
Issuer agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
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Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable to
any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Issuer, if
made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgements
of deeds or administer oaths that the person executing such
instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of
the person executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the identifying number
of such Security and the date of his holding the same, may be proved
by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall
be dated and shall state that on the date thereof a Security of such
series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities of one
or more series specified therein. The holding by the person named in
any such certificate of any Unregistered Securities of any series
specified therein shall be presumed to continue for a period of one
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53
year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later
date issued in respect of the same Securities shall be produced, or
(2) the Security of such series specified in such certificate shall be
produced by some other person, or (3) the Security of such series
specified in such certificate shall have ceased to be Outstanding.
Subject to Sections 6.1 and 6.2, the fact and date of the execution of
any such instrument and the amount and numbers of Securities of any
series held by the person so executing such instrument and the amount
and numbers of any Security or Securities for such series may also be
proven in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee for such series or in any other manner
which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities of any series entitled to vote
or consent to any action referred to in Section 7.1, which record date may
be set at any time or from time to time by notice to the Trustee, for any
date or dates (in the case of any adjournment or reconsideration) not more
than 90 days nor less than five days prior to the proposed date of such
vote or consent, and thereafter, notwithstanding any other provisions
hereof, with respect to Registered Securities of any series, only Holders
of Registered Securities of such series of record on such record date shall
be entitled to so vote or give such consent or revoke such vote or consent.
SECTION 7.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and
neither the Issuer nor the Trustee nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may treat the Holder of
any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes
and neither the Issuer, the Trustee, nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. All such payments
so made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
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54
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect
to which such determination is being made shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected
in relying on any such direction, consent or waiver only Securities which
the Trustee knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Issuer or any other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to
the Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 6.1
and 6.2, the Trustee shall be entitled to accept such Officer's Certificate
as conclusive evidence of the facts set forth therein and of the fact that
all Securities not listed therein are Outstanding for the purpose of any
such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided
in this Article, revoke such action so far as concerns such Security.
Except as aforesaid, any such action taken by the Holder of any Security
shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders
of all the Securities affected by such action.
<PAGE>
55
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and
the Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as set forth herein; provided that, in respect of any such
additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided that no such
action shall adversely affect the interests of the Holders of the
Outstanding Securities or Coupons;
(e) to establish the form or terms of Securities of any series
or of the Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3;
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56
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11; and
(g) to provide for the terms and conditions of conversion into
Common Stock of the Securities of any series which are convertible
into Common Stock, if different from those set forth in Article
Thirteen.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into
any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions
of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Article Seven)
of the Holders of not less than a majority in aggregate principal amount of
the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized
by a resolution of its Board of Directors (which resolution may provide
general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and at
any time, enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such series or of the Coupons appertaining to such Securities; provided
that no such supplemental indenture shall (a) extend the final maturity of
any Security, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount
payable on redemption or mandatory repurchase thereof, or make the
principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof provable in
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57
bankruptcy pursuant to Section 5.2, or alter the provisions of Section
11.11 or 11.12 or, if any Security is convertible into Common Stock, modify
the terms and conditions of such conversion after the issuance of such
Security in a manner adverse to the Holder thereof or impair or affect the
right of any Securityholder to institute suit for the payment or conversion
thereof or, if the Securities provide therefor, any right of repayment at
the option of the Securityholder, in each case without the consent of the
Holder of each Security so affected, or (b) reduce the aforesaid percentage
of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the
Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or
which modifies the rights of Holders of Securities of such series, or of
Coupons appertaining to such Securities, with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms
of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the
Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Holders
of the Securities as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of
such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security register, (ii) if any Unregistered Securities
of a series affected thereby are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii), by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then
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58
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The City
of New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms
the substance of such supplemental indenture. Any failure of the Issuer to
give such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuer and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and condi-
tions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies
with the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as
to any action taken by Securityholders. If the Issuer or the Trustee shall
so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be
prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer covenants that it
will not merge or consolidate with any other person or sell, lease or
convey all or substantially all of its assets to any other person, unless
(i) either the Issuer shall be the continuing corporation, or the successor
corporation or the person which acquires by sale, lease or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall
be a corporation organized under the laws of the United States of America
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59
or any state thereof or the District of Columbia and shall expressly assume
the due and punctual payment of the principal of and interest on all the
Securities and Coupons, if any, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Issuer, by
supplemental indenture satisfactory to the Trustee, executed and delivered
to the Trustee by such corporation, and (ii) the Issuer, such person or
such successor corporation, as the case may be, shall not, immediately
after such merger or consolidation, or such sale, lease or conveyance, be
in default in the performance of any such covenant or condition.
SECTION 9.2 Successor Corporation Substituted. In case of any
such consolidation, merger, sale, lease or conveyance, and following such
an assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Issuer, with the same effect as
if it had been named herein. Such successor corporation may cause to be
signed, and may issue either in its own name or in the name of the Issuer
prior to such succession any or all of the Securities issuable hereunder
which together with any Coupons appertaining thereto theretofore shall not
have been signed by the Issuer and delivered to the Trustee; and, upon the
order of such successor corporation, instead of the Issuer, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities together with
any Coupons appertaining thereto which previously shall have been signed
and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued together with any Coupons
appertaining thereto shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in substance) may be
made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
Nine shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel Delivered to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption, and any such
liquidation or dissolution, complies with the applicable provisions of this
Indenture.
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If
at any time (a) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.9) as and when the same shall have become due and payable, or
(b) the Issuer shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated and all unmatured
Coupons appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section
2.9) or (c) in the case of any series of Securities where the exact or
maximum amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and
all unmatured Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or, in the
case of any series of Securities the payments on which may only be made in
Dollars, direct obligations of the United States of America, backed by its
full faith and credit ("U.S. Government Obligations"), maturing as to
principal and interest at such times (but not later than one day before the
due date) and in such amounts as will insure the availability of cash, or a
combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest on
all Securities of such series and Coupons appertaining thereto on each date
that such principal or interest is due and payable and (B) any mandatory
sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of
such series; and if, in any such case, the Issuer shall also pay or cause
to be paid all other sums payable hereunder by the Issuer with respect to
the Securities of such series, then this Indenture with respect to the
Securities of such series shall cease to be of further effect (except as to
(i) rights of registration of transfer and exchange of Securities of such
Series and of Coupons appertaining thereto and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of holders of
Securities and Coupons appertaining thereto to receive payments of
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61
principal thereof and interest thereon, upon the original stated due dates
therefor (or the specified redemption date if earlier but not upon
acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable
to all or any of them, and (vi) the obligations of the Issuer under Section
3.2) and the Trustee, on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to the Securities of such
series; provided that the rights of Holders of the Securities and Coupons
to receive amounts in respect of principal of and interest on the
Securities and Coupons held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Issuer agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officer's Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the
next preceding paragraph, in the case of any series of Securities the exact
or maximum amounts (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (a) below, the Issuer shall be deemed to have paid
and discharged the entire indebtedness on all the Securities of such a
series and the Coupons appertaining thereto on the 91st day after the date
of the deposit referred to in subparagraph (a) below, and the provisions of
this Indenture with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (iii) rights of Holders of Securities
and Coupons appertaining thereto to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not
upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of the
Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the Issuer,
shall, at the Issuer's request, execute proper instruments acknowledging
the same, if
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(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto (i) cash in an amount, or
(ii) in the case of any series of Securities the payments on which may
only be made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times (but not later than one day
before the due date) and in such amounts as will insure the
availability of cash, or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (A) the principal and interest on all Securities
of such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities of
such series;
(b) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.1(d) and (e) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such defeasance shall not cause the Trustee to have a
conflicting interest pursuant to Section 310(b) of the Trust Indenture
Act of 1939 with respect to any securities of the Issuer;
(d) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(e) no Change in Control shall occur at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(f) such defeasance shall not result in the trust arising from
the deposit referred to in paragraph (a) above constituting an
"investment company" within the meaning of the Investment Company Act;
(g) such defeasance shall not cause any Securities then listed
on any registered national securities exchange under the Exchange Act
to be delisted;
(h) if the Securities of such series are to be redeemed, either
notice of such redemption shall have been given or the Issuer shall
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63
have given the Trustee irrevocable directions to give notice of such
redemption in the name, and at the expense of, the Issuer, under
arrangements satisfactory to the Trustee;
(i) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred; and
(j) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied.
(C) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officer's Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In the case of any series of Securities the exact or maximum
amounts (including the currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred
to in clause (a) below, the Issuer shall be released from its obligations
under Section 3.6 and Section 9.1 with respect to the Securities of any
Series, and any Coupons appertaining thereto, Outstanding on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to the Outstanding Securities of any Series, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition
or limitation set forth in such Section, whether directly or indirectly by
reason of any reference elsewhere herein to such Section or by reason of
any reference in such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of
Default under Section 5.1, but the remainder of this Indenture and such
Securities and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection (C) of this Section 10.1:
(a) the Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Securities of such series
and Coupons appertaining thereto, (i) cash in an amount, or (ii) in
the case of any series of Securities the payments on which may only be
made in Dollars, U.S. Government Obligations maturing as to principal
and interest at such times (but not later than one day before the due
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64
date) and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such series and
coupons appertaining thereto and (B) any mandatory sinking fund
payments on the day on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series;
(b) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.1(d) and (e) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such Covenant Defeasance shall not cause the Trustee to have
a conflicting interest pursuant to Section 310(b) of the Trust
Indenture Act of 1939 with respect to any securities of the Issuer;
(d) such Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound;
(e) such Covenant Defeasance shall not cause any Securities then
listed on any registered national securities exchange under the
Exchange Act to be delisted;
(f) the Issuer shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel to the effect that the Holders of
the Securities of such series and Coupons appertaining thereto will
not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(g) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Covenant Defeasance
contemplated by this provision have been complied with;
(h) no Change in Control shall have occurred at any time during
the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period);
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(i) such Covenant Defeasance shall not result in the trust
arising from the deposit referred to in paragraph (a) above
constituting an investment company within the meaning of the
Investment Company Act; and
(j) if the Securities of such series are to be redeemed, either
notice of such redemption shall have been given or the Issuer shall
have given the Trustee irrevocable directions to give notice of such
redemption in the name, and at the expense of, the Issuer, under
arrangements satisfactory to the Trustee.
If subsequent to the date a discharge or Covenant Defeasance is
effected pursuant to this Section 10.1, additional amounts in excess of
those established as of the date such discharge or Covenant Defeasance is
effected become payable in respect of the series of Securities discharged
or with respect to which the Indenture is discharged or with respect to
which a Covenant Defeasance has been effected, in order to preserve the
benefits of the discharge or Covenant Defeasance established hereunder, the
Issuer shall irrevocably deposit or cause to be irrevocably deposited in
accordance with the provisions of this Section 10.1, within ten Business
Days prior to the date the first payment in respect of any portion of such
excess additional amounts becomes due, such additional funds as are
necessary to satisfy the provisions of this Section 10.1 as if a discharge
or Covenant Defeasance were being effected as of the date of such
subsequent deposit. Failure to comply with the requirements of this
paragraph shall result in the termination of the benefits of the discharge
or Covenant Defeasance established by this Section 10.1.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Section 10.1
and all monies received by the Trustee in respect of such U.S. Government
Obligations shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of the particular Securities of such
series and of Coupons appertaining thereto for the payment or redemption of
which such moneys and U.S. Government Obligations have been deposited with
the Trustee, of all sums due and to become due thereon for principal and
interest; but such money and U.S. Government Obligations need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series, all moneys then held by any paying
agent under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Issuer, be repaid to it or the Trustee
and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee
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66
or any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal
or interest shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to
the Issuer by the Trustee for such series or such paying agent, and the
Holder of the Securities of such series and of any Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect
to such moneys shall thereupon cease; provided, however, that the Trustee
or such paying agent, before being required to make any such repayment with
respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer,
mail by first-class mail to Holders of such Securities at their addresses
as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer
cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in
London (and if required by Section 3.7, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a date
specified therein, which shall not be less than thirty days from the date
of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
SECTION 10.6 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 Issuer has been discharged or released pursuant to
Section 10.1(A), 10.1(B) or 10.1(C) 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 10.2 with
respect to such Securities in accordance with this Article; provided,
however, that if the Issuer makes any payment in respect of the principal
of or interest on any such Security following such reinstatement of its
obligations, the Issuer 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.
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SECTION 10.7 Excess Funds. The Trustee shall deliver to the
Issuer from time to time upon Issuer Order any U.S. Government Obligations
or money held by it as provided in Section 10.1 which, as expressed in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee
(which may be included in the applicable such opinion delivered to the
Trustee pursuant to Section 10.1), are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for
which such obligations or money were deposited or received, including
without limitation as a result of the surrender for conversion of any
Securities of a series as to which the Issuer has deposited money or U.S.
Government Obligations pursuant to Section 10.1(A), (B) or (C).
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any
successor, either directly or through the Issuer or any successor, under
any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance of the
Securities and the Coupons appertaining thereto by the Holders thereof and
as part of the consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture,
in the Securities or in the Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any person, firm or corpora-
tion, other than the parties hereto and their successors and the Holders of
the Securities or Coupons, if any, any legal or equitable right, remedy or
claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of
the parties hereto and their successors and of the Holders of the
Securities or Coupons, if any.
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SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders
of Securities and Coupons. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the
Trustee or by the Holders of Securities or Coupons to or on the Issuer may
be given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Trustee) to Alex.
Brown Incorporated, 135 East Baltimore Street, Baltimore, Maryland 21202,
Attention: Secretary. Any notice, direction, request or demand by the
Issuer or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Trustee is filed
by the Trustee with the Issuer) to Chemical Bank, 450 West 33rd Street, New
York, New York 10001, Attention: Corporate Trustee Administration
Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto at his last address as it appears
in the Security register. In any case where notice to such Holders is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in
reliance upon such waiver. Notice to the Holders of Unregistered
Securities who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii) shall be given by first class mail, postage
prepaid, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the
Trustee shall make such information available to the Issuer for such
purpose). Notice to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City
of New York and in an Authorized Newspaper in London (and, if required by
Section 3.7, in an Authorized Newspaper in Luxembourg), in each case,
except to the extent otherwise provided herein, once in each of three
successive calendar weeks. Any notice which is mailed or published in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
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69
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the
Issuer when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of
this Indenture, the Issuer shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that
the person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that,
in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to
whether or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the
same are erroneous. Any certificate, statement or opinion of counsel may
be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting matters,
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upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of
any series or any Coupons appertaining thereto, the last day on which a
Holder has the right to convert his Security at a particular Conversion
Price, or the date fixed for redemption or repayment of any such Security
or Coupon shall not be a Business Day, then payment of interest or
principal and the actions required by Section 13.2 in order to convert a
Security at a particular Conversion Price need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for redemption
or such last day for conversion, and (in the case of payment) no interest
shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act of 1939 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 of 1939 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 11.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance
with the laws of such State, except as may otherwise be required by man-
datory provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered pursuant
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71
to Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken
by the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding Securities of
any series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series
which shall be deemed to be Outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this Section 11.11,
Market Exchange Rate shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency published by the Federal Reserve
Bank of New York; provided, however, in the case of ECUs, Market Exchange
Rate shall mean the rate of exchange determined by the Commission of the
European Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECUs,
the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of exchange
from one or more major banks in The City of New York or in the country of
issue of the currency in question, which for purposes of the ECU shall be
Brussels, Belgium, or such other quotations or, in the case of ECU, rates
of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture, including, without limitation, any
determination contemplated in Section 5.1(f) or (g).
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted by law for
all purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a)
if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which
a judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York Banking Day, then,
to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with
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72
the Judgment Currency on the New York Banking Day preceding the day on
which a final unappealable judgment is entered, and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that
such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short
of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City
of New York or a day on which banking institutions in The City of New York
are authorized or required by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES; SINKING FUNDS AND OPTION
TO PURCHASE ON CHANGE OF CONTROL
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity, to any sinking fund for the retirement of
Securities of a series or as to which Holders have the option to require
the Issuer to repurchase such Securities upon a Change of Control except,
in each case, as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice
of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given
by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a
whole or in part, who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not
more than 60 days prior to the date fixed for redemption, to such Holders
at such addresses as were so furnished to the Trustee (and, in the case of
any such notice given by the Issuer, the Trustee shall make such
information available to the Issuer for such purpose). Notice of
redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City
of New York and in an Authorized Newspaper in London (and, if required by
Section 3.7, in an Authorized Newspaper in Luxembourg), in each case, once
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in each of three successive calendar weeks, the first publication to be not
less than 30 nor more than 60 days prior to the date fixed for redemption.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified
in such notice, that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue and, in the case of
convertible Securities, the current Conversion Price and the date on which
the right to convert such Securities or portions thereof into Common Stock
will expire and the place or places where such Securities may be
surrendered for conversion. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at
the Issuer's request, by the Trustee in the name and at the expense of the
Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided
in Section 3.4) an amount of money sufficient to redeem on the redemption
date all the Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to the date
fixed for redemption. The Issuer will deliver to the Trustee at least 70
days prior to the date fixed for redemption an Officer's Certificate
stating the aggregate principal amount of Securities to be redeemed. In
case of a redemption at the election of the Issuer prior to the expiration
of any restriction on such redemption, the Issuer shall deliver to the
Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officer's Certificate stating that such
restriction has been complied with.
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If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such Series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal
amount thereon to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed. If any
Security selected for partial redemption is converted in part after such
selection, the converted portion of such Security shall be deemed (so far
as may be) to be the portion to be selected for redemption. The Securities
(or portions thereof) so selected shall be deemed duly selected for
redemption for all purposes hereof, notwithstanding that any such Security
is converted in whole or in part before the giving of the notice of
redemption. Upon any redemption of less than all the Securities, the
Company and the Trustee may treat as outstanding any Securities surrendered
for conversion during the period 15 days next preceding the giving of a
notice of redemption and need not treat as outstanding any Security
authenticated and delivered during such period in exchange for the
unconverted portion of any Security converted in part during such period.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Securities at the redemption price, together
with interest accrued to said date) interest on the Securities or portions
of Securities so called for redemption shall cease to accrue, and the unma-
tured Coupons, if any, appertaining thereto shall be void, and, except as
provided in Sections 6.5 and 10.4, such Securities shall cease from and
after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right
in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at
the applicable redemption price, together with interest accrued thereon to
the date fixed for redemption; provided that payment of interest becoming
due on or prior to the date fixed for redemption shall be payable in the
case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of Registered Securities registered
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as such on the relevant Record Date subject to the terms and provisions of
Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee, if there be furnished
to each of them such security or indemnity as they may require to save each
of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so
presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in an Officer's Certificate delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund payment
is to be made is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
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Section, (c) receive credit for Securities of such series (not previously
so credited) redeemed by the Issuer through any optional redemption provi-
sion contained in the terms of such series or (d) receive credit for any
Securities converted by the Holder thereof into Common Stock. Securities
so delivered or credited shall be received or credited by the Trustee at
the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied
by credit of Securities of such series and the basis for such credit, (b)
stating that none of the Securities of such series has theretofore been so
credited and the basis for such credit, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officer's Certificate (or reasonably promptly thereafter
if acceptable to the Trustee). Such Officer's Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officer's Certificate and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver
or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such
series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or less and the
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Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in
Section 12.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officer's Certificate delivered
to the Trustee at least 60 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Issuer or (b) an entity specifically identified in such
Officer's Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption
of the Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section 12.3) for
the redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay
to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such
Securities or of any Event of Default except that, where the giving of
notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur,
and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the 60th day
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preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Purchase of Securities by the Issuer at Option of
the Holder upon Change of Control. (a) If so provided in a Board
Resolution, Officer's Certificate or supplemental indenture hereto provided
pursuant to Section 2.3 with respect to the Securities of any series, the
Holder of a Security of such series shall have the right, if at any time
there shall have occurred a Change of Control, at the option of the Holder
thereof, to require the Issuer to purchase at the Change of Control
Purchase Price, on the Change of Control Purchase Date, the Securities of
such series, subject to satisfaction by or on behalf of the Holder of a
Security of such series of the requirements set forth in Section 12.6(c).
(b) Within 20 Business Days after the occurrence of a Change of
Control, the Issuer shall provide a written notice of Change of Control to
the Trustee and to each Holder of a Security of any series or Coupon
appertaining thereto (and to beneficial owners as required by applicable
law) as provided in Section 11.4. The Trustee shall be under no obligation
to ascertain the occurrence of a Change of Control or give notice with
respect thereto unless so requested by the Issuer, upon receipt of the
written notice of Change of Control from the Issuer. The Trustee may
conclusively assume, in the absence of a written notice to the contrary
from the Issuer, that no Change of Control has occurred. The notice shall
include a form of Change of Control Purchase Notice and shall state:
(1) the events causing a Change of Control and the date such
Change of Control is deemed to have occurred for purposes of this
Section 12.6;
(2) the date by which the Change of Control Purchase Notice
pursuant to this Section 12.6 must be given;
(3) the Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) the place to surrender the Securities of any series in
exchange for the Change of Control Purchase Price;
(6) that the Change of Control Purchase Price for any Security
of any series as to which a Change of Control Purchase Notice has been
duly given and not withdrawn will be paid promptly following the later
of the Change of Control Purchase Date and the time of delivery of
such Security;
(7) the current Conversion Price;
(8) that Securities of any series as to which a Change of
Control Purchase Notice has been given may be converted prior to the
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close of business on the Change of Control Purchase Date only if the
Change of Control Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(9) the procedures the holder must follow to exercise rights
under this Section 12.6;
(10) that Holders who wish to convert Securities of any series
must satisfy the requirements set forth in the Indenture; and
(11) the procedures for withdrawing a Change of Control Purchase
Notice.
(c) A Holder may exercise its rights specified in Section
12.6(a) upon delivery of a written notice of purchase (a "Change of Control
Purchase Notice") to the Issuer at any time prior to the close of business
on the Change of Control Purchase Date, stating:
(1) the certificate number of the Security that the Holder will
deliver to be purchased;
(2) if the Security of any series is to be purchased in part,
the portion of the principal amount of the Security that the Holder
will deliver to be purchased, which portion must be an authorized
denomination for Securities of such series; and
(3) that such Security shall be purchased pursuant to the terms
and conditions specified in this Section 12.6.
The delivery of such Security in the case of Registered
Securities and with all unmatured Coupons appertaining thereto in the case
of Unregistered Securities, to the Issuer prior to, on or after the Change
of Control Purchase Date (together with all necessary endorsements) at any
of the offices or agencies to be maintained for such purpose by the Issuer
pursuant to Section 3.2 shall be a condition to the receipt by the Holder
of a Security of any series or Coupon appertaining thereto of the Change of
Control Purchase Price therefor; provided that such Change of Control
Purchase Price shall be so paid pursuant to this Section 12.6 only if the
Security so delivered to the Issuer shall conform in all respects to the
description thereof set forth in the related Change of Control Purchase
Notice.
The Issuer shall purchase from the Holder thereof, pursuant to
this Section 12.6, a portion of a Security if the principal amount of such
portion is an authorized denomination of Securities of such series.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Issuer contemplated pursuant to the
provisions of this Section 12.6 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
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the Change of Control Purchase Date and the time of delivery of the
Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Issuer the Change of Control Purchase Notice shall have
the right to withdraw such Change of Control Purchase Notice at any time
prior to the close of business on the Change of Control Purchase Date by
delivery of a written notice of withdrawal to the Issuer in accordance with
Section 12.7.
SECTION 12.7 Effect of Change of Control Purchase Notice;
Withdrawal Notice. (a) Upon receipt by the Issuer of a Change of Control
Purchase Notice, the Holder of the Security of any series or Coupon
appertaining thereto in respect of which such Change of Control Purchase
Notice was given shall (unless such Change of Control Purchase Notice is
withdrawn as specified in the following two paragraphs or the Issuer fails
to purchase such Securities on the Change of Control Purchase Date)
thereafter be entitled to receive solely the Change of Control Purchase
Price with respect to such Security. Securities in respect of which a
Change of Control Purchase Notice has been given by the Holder thereof may
not be converted as provided in Article Thirteen on or after the date of
the delivery of such Change of Control Purchase Notice unless such Change
of Control Purchase Notice has first been validly withdrawn as specified in
the following paragraph.
(b) A Change of Control Purchase Notice may be withdrawn (before
or after delivery by the Holder to the Issuer of the Security to which such
Change of Control Purchase Notice relates) by means of a written notice of
withdrawal delivered by the Holder to the office of the Issuer at any time
prior to the close of business on the Change of Control Purchase Date
specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security that remains
subject to the original Change of Control Purchase Notice and that has
been or will be delivered for purchase by the Issuer.
(c) There shall be no purchase of any Securities of any series
pursuant to Section 12.6 if there has occurred (prior to, on or after, as
the case may be, the giving by the Holders of such Security of the required
Change of Control Purchase Notice) and is continuing an Event of Default
(other than a default in the payment of the Change of Control Purchase
Price with respect to such Securities). The Issuer will promptly return to
the respective Holders thereof any Securities (x) with respect to which the
Change of Control Purchase Notice has been withdrawn in compliance with
this Indenture, or (y) held by it during the continuance of an Event of
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81
Default (other than a default in the payment of the Change of Control
Purchase Price with respect to such Securities).
SECTION 12.8 Securities Purchased in Part. Any Security that is
to be purchased pursuant to Section 12.6 only in part shall be surrendered
at any of the offices or agencies to be maintained for such purpose by the
Issuer pursuant to Section 3.2 (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing) and the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service change, a new Security or
Securities, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of
the principal amount of the Security so surrendered that is not purchased.
SECTION 12.9 Covenant to Comply with Securities Laws upon
Purchase of Securities. In connection with any offer to purchase or
purchase of Securities under Section 12.6 hereof (provided that such offer
or purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4
(which term, as used herein, includes any successor provisions thereto)
under the Exchange Act at the time of such offer or purchase), the Issuer
shall (i) comply with Rule 13e-4 under the Exchange Act, (ii) file the
related Schedule 13E-4 (or any successor schedule, form or report) under
the Exchange Act and (iii) otherwise comply with all federal and state
securities laws so as to permit the rights and obligations under
Section 12.6 to be exercised to the greatest extent practicable in the time
and in the manner specified in Section 12.6.
ARTICLE THIRTEEN
CONVERSION
SECTION 13.1 Conversion Privilege. If so provided in a Board
Resolution, Officer's Certificate or supplemental indenture provided
pursuant to Section 2.3 with respect to the Securities of any series, the
Holder of a Security of such series shall have the right, at such Holder's
option, to convert, in accordance with the terms of such series of
Securities and this Article Thirteen, all or any part (in a denomination
of, unless otherwise specified in a Board Resolution, Officer's Certificate
or supplemental indenture with respect to Securities of such series, $1,000
in principal amount or any integral multiple thereof) of such Security into
shares of Common Stock specified in such Board Resolution, Officer's
Certificate or supplemental indenture provided pursuant to Section 2.3 at
any time or, as to any Securities called for redemption, at any time prior
to the time and date fixed for such redemption (unless the Issuer shall
default in the payment of the Redemption Price, in which case such right
shall not terminate at such time and date). The provisions of this Article
Thirteen shall not be applicable to the Securities of a series unless
otherwise specified in a Board Resolution, Officer's Certificate or
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supplemental indenture provided pursuant to Section 2.3 with respect to the
Securities of such series.
SECTION 13.2 Conversion Procedure; Rescission of Conversion;
Conversion Price; Fractional Shares. (a) Each Security to which this
Article Thirteen is applicable shall be convertible at the office of the
Conversion Agent, and at such other place or places, if any, specified in a
Board Resolution, Officer's Certificate or supplemental indenture provided
pursuant to Section 2.3 with respect to the Securities of such series, into
fully paid and nonassessable shares (calculated to the nearest 1/100th of a
share) of Common Stock. The Securities will be converted into shares of
Common Stock at the Conversion Price therefor. No payment or adjustment
shall be made in respect of dividends on the Common Stock, or accrued
interest on a converted Security except as described in Section 13.9. The
Issuer may, but shall not be required, in connection with any conversion of
Securities, issue a fraction of a share of Common Stock, and, if the Issuer
shall determine not to issue any such fraction, the Issuer shall, subject
to Section 13.3(d), make a cash payment (calculated to the nearest cent)
equal to such fraction multiplied by the Closing Price of the Common Stock
on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Security duly
endorsed to the Issuer or in blank in the case of Registered Securities and
with all unmatured Coupons appertaining thereto in the case of Unregistered
Securities, at the office of the Conversion Agent or at such other place or
places, if any, specified in a Board Resolution, Officer's Certificate or
supplemental indenture provided pursuant to Section 2.3 with respect to the
Securities of such series, and shall give written notice to the Issuer at
said office or place that he elects to convert the same and shall state in
writing therein the principal amount of Securities to be converted and the
name or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued; provided, however, that no
Security or portion thereof shall be accepted for conversion unless the
principal amount of such Security or such portion, when added to the
principal amount of all other Securities or portions thereof then being
surrendered by the Holder thereof for conversion, exceeds the then
effective Conversion Price with respect thereto. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the
number of full shares of Common Stock which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted
thereby) so surrendered. Subject to the next succeeding sentence, the
Issuer will, as soon as practicable thereafter, issue and deliver at said
office or place to such Holder of a Security, or to his nominee or
nominees, certificates for the number of full shares of Common Stock to
which he shall be entitled as aforesaid, together, subject to the last
sentence of paragraph (a) above, with cash in lieu of any fraction of a
share to which he would otherwise be entitled. The Issuer shall not be
required to deliver certificates for shares of Common Stock while the stock
transfer books for such stock or the Security register are duly closed for
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83
any purpose, but certificates for shares of Common Stock shall be issued
and delivered as soon as practicable after the opening of such books or
Security register. A Security shall be deemed to have been converted as of
the close of business on the date of the surrender of such Security for
conversion as provided above, and the person or persons entitled to receive
the Common Stock issuable upon such conversion shall be treated for all
purposes as the record Holder or Holders of such Common Stock as of the
close of business on such date. In case any Security shall be surrendered
for partial conversion, the Issuer shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the
Securities so surrendered, without charge to such Holder (subject to the
provisions of Section 13.8), a new Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Security.
SECTION 13.3 Adjustment of Conversion Price for Common Stock.
Unless otherwise specified pursuant to Section 2.3, the Conversion Price
with respect to any Security which is convertible into Common Stock shall
be adjusted from time to time as follows:
(a) In case the Issuer shall, at any time or from time to time
while any of such Securities are outstanding, (i) pay a dividend in
shares of its Common Stock, (ii) combine its outstanding shares of
Common Stock into a smaller number of shares or securities, (iii)
subdivide its outstanding shares of Common Stock into a greater number
of securities or (iv) issue by reclassification of its shares of
Common Stock any shares of capital stock of the Issuer, then the
Conversion Price in effect immediately before such action shall be
adjusted so that the Holders of such Securities, upon conversion
thereof into Common Stock immediately following such event, shall be
entitled to receive the kind and amount of shares of capital stock of
the Issuer which they would have owned or been entitled to receive
upon or by reason of such event if such Securities had been converted
immediately before the record date (or, if no record date, the
effective date) for such event. An adjustment made pursuant to this
subsection 13.3(a) shall become effective retroactively immediately
after the record date in the case of a dividend or distribution and
shall become effective retroactively immediately after the effective
date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this subsection (a),
the Holder of any Security thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes of capital
stock or shares of Common Stock and other capital stock of the Issuer,
the Board of Directors (whose determination shall be conclusive and
shall be described in a statement filed by the Issuer with the Trustee
and with any Conversion Agent (if a Person other than the Trustee) as
soon as practicable) shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes of capital
stock or shares of Common Stock and other capital stock. For the
purposes of this subsection 13.3(a), each Holder of Securities shall
be deemed to have failed to exercise any right to elect the kind or
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84
amount of securities receivable upon the payment of any such dividend,
subdivision, combination or reclassification (provided that if the
kind or amount of securities receivable upon such dividend,
subdivision, combination or reclassification is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
reclassification for each nonelecting share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
nonelecting shares).
(b) In case the Issuer shall, at any time or from time to time
while any of such Securities are Outstanding, issue rights or warrants
to all holders of shares of its Common Stock entitling them (for a
period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per
share less than the Current Market Price of the Common Stock at such
record date (treating the price per share of the securities
convertible into Common Stock as equal to (x) the sum of (i) the price
for a unit of the security convertible into Common Stock plus (ii) any
additional consideration initially payable upon the conversion of such
security into Common Stock divided by (y) the number of shares of
Common Stock initially underlying such convertible security), the
Conversion Price with respect to such Securities shall be adjusted so
that it shall equal the price determined by dividing the Conversion
Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction, the numerator of which shall be the
number of shares of Common Stock Outstanding on the date of issuance
of such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible), and the
denominator of which shall be the number of shares of Common Stock
Outstanding on the date of issuance of such rights or warrants plus
the number of shares or convertible securities which the aggregate
offering price of the total number of shares or convertible securities
so offered for subscription or purchase (or the aggregate purchase
price of the convertible securities so offered plus the aggregate
amount of any additional consideration initially payable upon
conversion of such convertible securities into Common Stock) would
purchase at such Current Market Price of the Common Stock. Such
adjustment shall be made successively whenever any such rights or
warrants are issued and shall become effective retroactively
immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock or securities
convertible into Common Stock at less than the Current Market Price,
and in determining the aggregate offering price of such shares of
Common Stock or convertible securities, there shall be taken into
account any consideration received by the Issuer for such rights or
warrants and for such convertible securities, the value of such
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85
consideration, if other than cash, to be determined by the Board of
Directors (whose determination shall be conclusive and shall be
described in a certificate filed with the Trustee and with any
Conversion Agent (if a Person other than the Trustee) by the Issuer as
soon as practicable). If at the end of the period during which such
warrants or rights are exercisable not all such warrants or rights
shall have been exercised, the adjusted Conversion Price shall be
immediately readjusted to what it would have been based on the number
of additional shares of Common Stock actually issued or the number of
shares of Common Stock issuable upon conversion of convertible
securities actually issued.
(c) In case the Issuer shall, at any time or from time to time
while any of such Securities are Outstanding, distribute to all
holders of shares of its Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Issuer
is the continuing corporation and the Common Stock is not changed or
exchanged) cash, evidences of its Indebtedness, assets (excluding (i)
regular periodic cash dividends in amounts, if any, determined from
time to time by the Board of Directors or (ii) dividends payable in
shares of Common Stock for which adjustment is made under subsection
13.3(a)), securities or rights or warrants to subscribe for or
purchase securities of the Issuer (excluding those for which
adjustment is made under Section 13.3(b)), then in each such case the
Conversion Price with respect to such Securities shall be adjusted so
that it shall equal the price determined by dividing the Conversion
Price in effect immediately prior to the date of such distribution by
a fraction, the numerator of which shall be the Current Market Price
of the Common Stock on the record date referred to below, and the
denominator of which shall be such Current Market Price of the Common
Stock less the then fair market value (as determined by the Board of
Directors of the Issuer, whose determination shall be conclusive) of
the portion of the cash or assets or evidences of indebtedness or
securities so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (provided that such
denominator shall never be less than 1.0), provided, however, that no
adjustment shall be made with respect to any distribution of rights to
purchase securities of the Issuer if a Holder of Securities would
otherwise be entitled to receive such rights upon conversion at any
time of such Securities into Common Stock unless such rights are
subsequently redeemed by the Issuer, in which case such redemption
shall be treated for purposes of this Section as a dividend on the
Common Stock. Such adjustment shall become effective immediately
after the record date for the determination of stockholders entitled
to receive such distribution; and in the event that such distribution
is not so made, the Conversion Price shall again be adjusted to the
\Conversion Price which would then be in effect if such record date
had not been fixed.
(d) Notwithstanding anything in subsection (b) or (c) of this
Section 13.3 to the contrary, with respect to any rights or warrants
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86
covered by subsection (b) or (c) of this Section 13.3, if such rights
or warrants are only exercisable upon the occurrence of certain
triggering events, then for purposes of this Section 13.3 such rights
or warrants shall not be deemed issued or distributed, and any
adjustment to the Conversion Price required by subsection (b) or (c)
of this Section 13.3 shall not be made until such triggering events
occur and such rights, warrants or options become exercisable.
(e) In case the Issuer, after the date of this Indenture, shall
issue to an Affiliate shares of its Common Stock (excluding those
rights, warrants, shares of capital stock or evidences of its
Indebtedness or assets referred to in subsection (b) or (c) of this
Section 13.3) at a net price per share less than the Current Market
Price of the Common Stock on the date the Issuer fixes the offering
price of such additional shares, the Conversion Price shall be reduced
immediately thereafter so that it shall equal the price determined by
multiplying such Conversion Price in effect immediately prior thereto
by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding immediately prior to the issuance of such
additional shares plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock
so offered would purchase at the Current Market Price of the Common
Stock and the denominator shall be the number of shares of Common
Stock that would be outstanding immediately after the issuance of such
additional shares. Such adjustment shall be made successively
whenever such an issuance is made. This subsection (e) shall not
apply to Common Stock issued to any Affiliate under a bona fide
employee or director benefit plan adopted by the Issuer or any
Subsidiary thereof and approved by the Board of Directors of the
Issuer or such Subsidiary, as appropriate.
(f) In case of the consummation of a tender or exchange offer
(other than an odd-lot tender offer) made by the Issuer or any
Subsidiary of the Issuer for all or any portion of the Common Stock
that involves the payment by the Issuer or such Subsidiary of
consideration per share of Common Stock having a fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) at
the last time (the "Expiration Time") tenders or exchanges may be made
pursuant to such tender or exchange offer (as it shall have been
amended) that exceeds the Current Market Price per share of Common
Stock on the last Trading Day preceding the date on which the Issuer
or such Subsidiary becomes irrevocably obligated to make such payment
(the "Obligation Date") pursuant to such tender or exchange offer, the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the Expiration Time
multiplied by the Current Market Price per share of Common Stock on
the last Trading Day preceding the Obligation Date, and the
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denominator shall be the sum of (A) the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (B) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the Expiration
Time and the Current Market Price per share of Common Stock on the
last Trading Day preceding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time. Notwithstanding the foregoing, no
adjustment shall be made to the Conversion Price pursuant to this
Section 13.3(f) in respect of any purchases of Common Stock made by
the Issuer or any Subsidiary of the Issuer (i) in accordance with past
practices pursuant to share repurchase programs authorized by the
Board of Directors of the Issuer and any such Subsidiary, or (ii) in
order to satisfy the obligations of the Issuer or any Subsidiary of
the Issuer under any bona fide employee or non-employee director
benefit plan of the Issuer or any such Subsidiary now or hereafter in
effect, provided that any such purchase is made at or below the
Current Market Price of the Common Stock on the trade date for such
purchase.
(g) The Issuer shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 13.3(a), 13.3(b), 13.3(c), 13.3(e) and 13.3(f), as shall
be necessary in order that any dividend or distribution of Common
Stock, any subdivision, reclassification or combination of shares of
Common Stock or any issuance of rights or warrants referred to above
shall not be taxable to the holders of Common Stock for United States
federal income tax purposes.
(h) In any case in which this Section 13.3 shall require that
any adjustment be made immediately following a record date or
effective date, the Issuer may elect to defer (but only for five
Trading Days following the filing of the statement referred to in
Section 13.5) issuing to the Holder of any Securities converted after
such record date or effective date the shares of Common Stock and
other capital stock of the Issuer issuable upon such conversion over
and above the shares of Common Stock issuable upon such conversion on
the basis of the Conversion Price prior to adjustment and paying to
such Holder any amount of cash in lieu of a fractional share;
provided, however, that the Issuer shall deliver to such Holder a due
bill or other appropriate instrument evidencing such Holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(i) All calculations under this Section 13.3 shall be made to
the nearest cent or one-hundredth of a share or security, with one-
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half cent and .005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 13.3, the Issuer
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an increase or
decrease of at least 1% in such price. Any adjustments under this
Section 13.3 shall be made successively whenever an event requiring
such an adjustment occurs.
(j) In the event that at any time, as a result of an adjustment
made pursuant to this Section 13.3, the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive
any shares of stock of the Issuer other than shares of Common Stock
into which the Securities originally were convertible, the Conversion
Price of such other shares so receivable upon conversion of any such
Security shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions
with respect to Common Stock contained in subparagraphs (a) through
(j) of this Section 13.3, and the provisions of Sections 13.1, 13.2
and 13.4 through 13.9 with respect to the Common Stock shall apply on
like or similar terms to any such other shares and the determination
of the Board of Directors as to any such adjustment shall be
conclusive.
(k) No adjustment shall be made pursuant to this Section 13.3
(i) if the effect thereof would be to reduce the Conversion Price
below the par value (if any) of the Common Stock, if any, or (ii)
subject to subsection 13.3(i) hereof, with respect to any Security
that is converted prior to the time such adjustment otherwise would be
made.
SECTION 13.4 Consolidation or Merger of the Issuer. Unless
otherwise specified pursuant to Section 2.3, in case of either (a) any
consolidation or merger to which the Issuer is a party, other than a merger
or consolidation in which the Issuer is the surviving or continuing
corporation and which does not result in a reclassification of, or change
(other than a change in par value or from par value to no par value or from
no par value to par value, as a result of a subdivision or combination) in,
Outstanding shares of Common Stock or (b) any sale or conveyance of all or
substantially all of the property and assets of the Issuer to another
Person, then each Security then Outstanding shall be convertible from and
after such merger, consolidation, sale or conveyance of property and assets
into the kind and amount of shares of stock or other securities and
property (including cash) receivable upon such consolidation, merger, sale
or conveyance by a holder of the number of shares of Common Stock into
which such Securities would have been converted immediately prior to such
consolidation, merger, sale or conveyance, subject to adjustments which
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shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Thirteen (and assuming such holder of Common
Stock failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property (including cash) receivable
upon such consolidation, merger, sale or conveyance (provided that, if the
kind or amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance is not the
same for each nonelecting share, then the kind and amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance for each nonelecting share shall be deemed to be
the kind and amount so receivable per share by a plurality of the
nonelecting shares or securities)). The Issuer shall not enter into any of
the transactions referred to in clause (a) or (b) of the preceding sentence
unless effective provision shall be made so as to give effect to the
provisions set forth in this Section 13.4.
SECTION 13.5 Notice of Adjustment. Whenever an adjustment in
the Conversion Price with respect to a series of Securities is required:
(1) the Issuer shall forthwith place on file with the Trustee
and any Conversion Agent for such Securities a certificate of the
Treasurer of the Issuer, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be
mailed, first class postage prepaid, by the Issuer to the Holders of
record of Outstanding Registered Securities designated for adjustment
and to the Holders of Unregistered Securities designated for
adjustment, who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), to such Holders at such addresses as
were so furnished to the Trustee (and, in the case of any such notice
given by the Issuer, the Trustee shall make such information available
to the Issuer for such purpose). Notice of adjustment to all other
Holders of Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 3.7, in an
Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to
give notice by mail or publication, or any defect in the notice to the
Holder of any Security of a series designated for adjustment shall not
affect the validity of the proceedings for the adjustment of any other
Security of such series.
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90
The Issuer may correct any previous certificate and notice given pursuant
to this Section 13.5 by (i) promptly filing with the Trustee and any
Conversion Agent other than the Trustee a new certificate in the form
required by this Section 13.5 and (ii) giving a new notice to the Holders
of Securities in the form and manner required by this Section 13.5. Such
new certificate and notice shall state that such certificate and notice are
being provided to correct the previous certificate and notice. Except as
otherwise provided in Section 6.1, neither the Trustee nor any Conversion
Agent shall be under any duty or responsibility with respect to the
certificate required by this Section 13.5 except to exhibit the same to any
Holder of Securities who requests to inspect it. The certificate required
by this Section 13.5 shall be filed at each office or agency maintained for
the purposes of conversion of Securities pursuant to Section 3.2.
SECTION 13.6 Notice in Certain Events. In case:
(1) of a consolidation or merger to which the Issuer is a party
and for which approval of any stockholders of the Issuer is required,
or of the sale or conveyance to another person or entity or group of
persons or entities acting in concert as a partnership, limited
partnership, syndicate or other group (within the meaning of Rule 13d-
3 under the Exchange Act) of all or substantially all of the property
and assets of the Issuer, or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Issuer; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article Thirteen;
then, in each case, the Issuer shall cause to be filed with the Trustee and
the Conversion Agent for the applicable Securities, and shall give to the
Holders of applicable Securities, at least 15 days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of any distribution or grant of rights or
warrants triggering an adjustment to the Conversion Price pursuant to this
Article Thirteen, or, if a record is not to be taken, the date as of which
the holders of record of Common Stock entitled to such distribution, rights
or warrants are to be determined, or (y) the date on which any
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up triggering an adjustment to the Conversion Price
pursuant to this Article Thirteen 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 Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up. Such notice
shall be given to Holders of Registered Securities in the manner provided
in Section 11.4 and to Holders of Unregistered Securities who have filed
their names and addresses with the Trustee pursuant to Section 4.4(c)(ii),
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91
by mailing such notice, by first class mail, postage prepaid, at least 15
days prior to the applicable date specified above, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of adjustment to all
other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and
in an Authorized Newspaper in London (and, if required by Section 3.7, in
an Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 15
days prior to the applicable date specified above. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clauses
(1), (2) or (3) of this Section 13.6.
SECTION 13.7 Issuer to Reserve Stock; Registration; Listing.
(a) The Issuer shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued shares of Common
Stock for the purpose of effecting the conversion of the Securities, such
number of its duly authorized shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all applicable outstanding
Securities into such Common Stock at any time (assuming that, at the time
of the computation of such number of shares or securities, all such
Securities would be held by a single Holder); provided, however, that
nothing contained herein shall preclude the Issuer from satisfying its
obligations in respect of the conversion of the Securities by delivery of
purchased shares of Common Stock which are held in the treasury of the
Issuer. The Issuer shall from time to time, in accordance with the laws of
the State of Maryland, use its best efforts to cause the authorized amount
of the Common Stock to be increased if the aggregate of the authorized
amount of the Common Stock remaining unissued and the issued shares of such
Common Stock in its treasury (other than any such shares reserved for
issuance in any other connection) shall not be sufficient to permit the
conversion of all Securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval of
any governmental authority before such shares or securities may be issued
upon such conversion, the Issuer will in good faith and as expeditiously as
possible endeavor to cause such shares or securities to be duly registered
or approved, as the case may be. The Issuer will endeavor to list the
shares of Common Stock required to be delivered upon conversion of the
Securities prior to such delivery upon the principal national securities
exchange upon which the outstanding Common Stock is listed at the time of
such delivery.
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92
SECTION 13.8 Taxes on Conversion. The Issuer shall pay any and
all documentary, stamp or similar issue or transfer taxes that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Issuer shall not, however,
be required to pay any such tax which may be payable in respect of any
transfer involved in the issue or delivery of shares of Common Stock or the
portion, if any, of the Securities which are not so converted in a name
other than that in which the Securities so converted were registered, and
no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Issuer the amount of such tax or has
established to the satisfaction of the Issuer that such tax has been paid.
SECTION 13.9 Conversion After Record Date. If any Securities
are surrendered for conversion subsequent to the Record Date preceding an
interest payment date but on or prior to such interest payment date (except
Securities called for redemption on a redemption date between such Record
Date and interest payment date), the Holder of such Securities at the close
of business on such Record Date shall be entitled to receive the interest
payable on such Securities on such interest payment date notwithstanding
the conversion thereof. Securities surrendered for conversion during the
period from the close of business on any Record Date next preceding any
interest payment date to the opening of business on such interest payment
date shall (except in the case of Securities which have been called for
redemption on a redemption date within such period) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Issuer of an amount equal to the interest payable on such interest payment
date on the Securities being surrendered for conversion. Except as
provided in this Section 13.9, no adjustments in respect of payments of
interest on Securities surrendered for conversion or any dividends or
distributions or interest on the Common Stock, issued upon conversion shall
be made upon the conversion of any Securities.
SECTION 13.10 Corporate Action Regarding Par Value of Common
Stock. Before taking any action which would cause an adjustment reducing
the applicable Conversion Price below the then par value (if any) of the
shares of Common Stock deliverable upon conversion of the Securities, the
Issuer will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Issuer may validly and legally
issue fully paid and nonassessable shares of Common Stock at such adjusted
Conversion Price.
SECTION 13.11 Issuer Determination Final. Any determination
that the Issuer or the Board of Directors must make pursuant to this
Article Thirteen is conclusive.
SECTION 13.12 Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article should be made, how it
should be made or what it should be. The Trustee makes no representation
as to the validity or value of any securities or assets issued upon
conversion of Securities. The Trustee shall not be responsible for the
Issuer's failure to comply with this Article Thirteen. Each Conversion
Agent other than the Issuer shall have the same protection under this
Section 13.12 as the Trustee.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of July 10, 1995.
ALEX. BROWN INCORPORATED
By /s/ A. B. Krongard
Title: Chief Executive Officer
Attest:
By /s/ Robert F. Price
Secretary
CHEMICAL BANK, TRUSTEE
By /s/ Laurence O'Brien
Vice President
Attest:
By /s/ R. Lorenzen
Assistant Vice President
<PAGE>
STATE OF MARYLAND )
) ss.:
BALTIMORE CITY )
On this 21st day of August 1995 before me personally came
A. B. Krongard, to me personally known, who, being by me duly sworn, did
depose and say that he/she resides in Baltimore, Maryland that he/she
is the Chief Executive Officer of Alex. Brown Incorporated, one of the
corporations described in and which executed the above instrument; that
he/she knows the corporate seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like authority.
[NOTARIAL SEAL]
Notary Public
/s/ Barbara Murphy
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 18th day of August, 1995 before me personally came
Laurence O'Brien, to me personally known, who, being by me duly sworn, did
depose and say that he resides in New York, New York that he is a Senior
Trust Officer of Chemical Bank, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such cor-
porate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
Notary Public
/s/ Annabelle DeLuca
