As filed with the Securities and Exchange Commission on April 7, 1999
Registration No. 333-64887
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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Boston Scientific Corporation
BSC Capital Trust
BSC Capital Trust II
BSC Capital Trust III
(Exact name of Registrants as specified in their respective charters)
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Delaware 04-2695240
Delaware Applied For
Delaware Applied For
Delaware Applied For
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
One Boston Scientific Place Paul W. Sandman, Esq.
Natick, Massachusetts 01760-1537 Senior Vice President
(508) 650-8000 Secretary and General Counsel
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
(508) 650-8000
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone
including area code, of each Registrant's principal number, including area code, of agent for service
executive offices) for each Registrant)
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Copies of Correspondence to:
Richard B. Vilsoet, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022-6069
(212) 848-4000
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Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective as determined
by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
(continued on next page)
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If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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The Registrants hereby amend this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrants shall file a further amendment which
specifically states that this Registration Statement shall thereafter
become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 7, 1999
PROSPECTUS
BOSTON SCIENTIFIC CORPORATION
Senior Debt Securities, Subordinated Debt Securities,
Preferred Stock, Depositary Shares, Common Stock, Warrants,
Stock Purchase Contracts and Stock Purchase Units
BSC CAPITAL TRUST
BSC CAPITAL TRUST II
BSC CAPITAL TRUST III
Trust Preferred Securities
Guaranteed as set forth herein by
BOSTON SCIENTIFIC CORPORATION
Boston Scientific Corporation ("Boston Scientific" or the "Company")
may offer and sell from time to time, together or separately, the following
securities in one or more series: (i) its unsecured senior debt securities (the
"Senior Debt Securities") and its unsecured subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), consisting of debentures, notes or other evidences of
indebtedness; (ii) shares of its preferred stock, par value $0.01 per share (the
"Preferred Stock"); (iii) depositary shares representing entitlement to all
rights and preferences of a fraction of a share of Preferred Stock of a specific
series (the "Depositary Shares"); (iv) shares of its common stock, par value
$0.01 per share (the "Common Stock"); (v) warrants to purchase any of the
foregoing Debt Securities, Preferred Stock, Depositary Shares or Common Stock
(the "Warrants"); (vi) stock purchase contracts (the "Stock Purchase Contracts")
to purchase Common Stock or Preferred Stock; (vii) stock purchase units (the
"Stock Purchase Units"), each Stock Purchase Unit representing ownership of a
Stock Purchase Contract and Trust Preferred Securities (as defined below) or
other debt obligations of third parties, including U.S. government or government
agency securities securing the holder's obligation to purchase Common Stock or
Preferred Stock under the Stock Purchase Contracts. The Senior Debt Securities,
Subordinated Debt Securities, Preferred Stock, Depositary Shares, Warrants,
Common Stock, Stock Purchase Contracts, Stock Purchase Units and the Trust
Preferred Securities are collectively called the "Securities."
BSC Capital Trust, BSC Capital Trust II and BSC Capital Trust III (each
a "Trust"), each a statutory business trust formed under the laws of the State
of Delaware, may each offer and sell from time to time, preferred securities,
representing preferred undivided beneficial interests in the assets of their
respective Trust ("Trust Preferred Securities"). The Company will own all of the
undivided beneficial ownership interests represented by the common securities of
each Trust ("Trust Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities"). To the extent described herein, the Company
will guarantee (each, a "Trust Guarantee") the payment of periodic cash
distributions ("Distributions") with respect to Trust Preferred Securities out
of monies held by the Trusts and payments on liquidation, redemption or
otherwise with respect to the Trust Preferred Securities. See "Description of
Trust Preferred Securities" and "Description of Trust Guarantee." Each Trust
Guarantee (i) will rank junior and subordinate in right of payment to all other
liabilities of the Company, except indebtedness of the Company that by its terms
is subordinate or pari passu to such Trust Guarantee, and (ii) will rank pari
passu with most senior preferred or preference stock of the Company. See
"Description of Trust Guarantee--Status of Trust Guarantee."
This prospectus may not be used to consummate sales of securities
unless accompanied by a prospectus supplement.
(Continued on next page)
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Securities may be offered and sold to or through underwriters,
dealers or agents as designated from time to time, or directly to one or more
other purchasers or through a combination of such methods. See "Plan of
Distribution." If any underwriters, dealers or agents are involved in the sale
of any of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangements between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution" for indemnification arrangements for
agents, dealers and underwriters.
The date of this Prospectus is , 1999.
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(Continued from front page)
The Company may issue and sell Subordinated Debt Securities from time
to time in one or more series to a Trust or a trustee of a Trust in connection
with the investment of proceeds from an offering of Trust Securities.
Subordinated Debt Securities purchased by a Trust may be subsequently
distributed pro rata to holders of Trust Securities of such Trust in connection
with the dissolution of such Trust upon the occurrence of certain events as may
be described in one or more supplements to this Prospectus (each, a "Prospectus
Supplement"). See "Description of Trust Preferred Securities" and "Description
of Trust Guarantee--Status of the Trust Guarantee."
One or more related Prospectus Supplements will set forth the form in
which the Securities are to be issued and certain specific terms of the
particular Securities described in this Prospectus, including, where applicable,
the following: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking as Senior Debt Securities or Subordinated
Debt Securities, maturity, premium, if any, interest rate, time and method of
calculating interest, if any, date on which interest, if any, shall be payable,
place where principal of, premium, if any, and interest, if any, on such Debt
Securities will be payable, the currencies or currency units in which principal
of, premium, if any, and interest, if any, on such Debt Securities will be
payable, any terms of redemption or conversion, any sinking fund provisions, the
purchase price, any right of the Company to defer payment of interest on the
Debt Securities and the maximum length of such deferral period and other special
terms; (ii) in the case of Preferred Stock or Depositary Shares, the specific
designation, stated value and liquidation preference per share and number of
shares offered, the purchase price, dividend rate (which may be fixed or
variable), method of calculating payment of dividends, place where dividends on
such Preferred Stock will be payable, any terms of redemption or conversion,
dates on which dividends shall be payable and dates from which dividends shall
accrue, voting and other rights, including whether interests in the Preferred
Stock will be represented by Depositary Shares and, if so, the fraction of a
share of Preferred Stock represented by each Depositary Share; (iii) in the case
of Common Stock, the number of shares offered, the initial offering price,
market price and dividend information; (iv) in the case of Warrants, the
specific designation, the number, purchase price, exercise price and other terms
thereof, as well as the terms on which, and the securities for which, the
Warrants may be exercised; (v) in the case of Stock Purchase Contracts, the
number of shares of Common Stock issuable thereunder, the purchase price of the
Common Stock, the date on which the Common Stock is required to be purchased by
the holders of the Stock Purchase Contracts, any periodic payments required to
be made by the Company to the holders of the Stock Purchase Contracts or vice
versa, and the terms of the offering and sale thereof; (vi) in the case of Stock
Purchase Units, the specific terms of the Stock Purchase Contracts and any Trust
Preferred Securities or debt obligations of third parties securing the holder's
obligation to purchase the Common Stock under the Stock Purchase Contracts, and
the terms of the offering and sale thereof; and (vii) in the case of Trust
Preferred Securities, the specific designation, number of securities,
liquidation amount per security, purchase price, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, terms for any
conversion or exchange into other securities, any redemption, exchange or
sinking fund provisions, any other rights, preferences, privileges, limitations
or restrictions relating to the Trust Preferred Securities, specific terms and
provisions of the Trust Guarantee and the terms upon which the proceeds of the
sale of the Trust Preferred Securities shall be used to purchase a specific
series of Subordinated Debt Securities.
The Company, by filing the Registration Statement of which this
Prospectus is a part, is seeking flexibility with respect to the offering of the
Securities to the public. While it is likely that the offering price to the
public of the Securities will be less, in no event will the offering price to
the public of the Securities exceed U.S. $1.2 billion in the aggregate (or its
equivalent (based on the applicable exchange rate of the time of issue), if the
Securities are offered for consideration denominated in one or more foreign
currencies or currency units as shall be designated by the Company). The
Securities may be offered, separately or together, in separate series, in
amounts at prices and on terms to be determined at the time of sale and set
forth in an accompanying Prospectus Supplement. The applicable Prospectus
Supplement will also contain information, where applicable, about certain U.S.
federal income tax considerations.
The Common Stock is listed on the New York Stock Exchange under the
trading symbol "BSX." The Prospectus Supplement will state whether any
Securities offered thereby will be listed on any national securities exchange.
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CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICES OF THE
SECURITIES OFFERED HEREBY, INCLUDING STABILIZING TRANSACTIONS, THE PURCHASE OF
SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY
BIDS. THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICES OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION."
No dealer, salesperson or other individual has been authorized to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus or any accompanying Prospectus Supplement and, if
given or made, such information or representation must not be relied upon as
having been authorized by the Company, any of the Trusts or any underwriter,
dealer or agent. Neither this Prospectus nor any accompanying Prospectus
Supplement constitutes an offer to sell or a solicitation of any offer to buy
any of the securities hereby or thereby offered in any jurisdiction where, or to
any person to whom, it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus or any accompanying Prospectus Supplement, nor
any sale made hereunder or thereunder shall create any implication that the
information herein or therein is correct as of any time subsequent to the date
hereof or thereof or that there has been no change in the affairs of the Company
or any of the Trusts since such date or, in the case of information incorporated
herein or therein by reference, the date of filing such information with the
Commission.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the following regional
offices: in Chicago, at Citicorp Center, 500 W. Madison, Suite 1400, Chicago,
Illinois 60661 and in New York, at Seven World Trade Center, 13th Floor, New
York, New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Commission also maintains a site on the world
wide web at http://www.sec.gov that contains reports, proxy and information
statements and other information filed electronically by the Company. In
addition, reports, proxy statements and other information concerning the Company
may be inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
This Prospectus constitutes part of a combined Registration Statement
on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") filed by the Company and each of the Trusts with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
As permitted by the rules and regulations of the Commission, this Prospectus and
any accompanying Prospectus Supplement omits certain of the information
contained in the Registration Statement. For further information with respect to
the Company, each of the Trusts and the Securities offered hereby, reference is
hereby made to the Registration Statement and to the exhibits and the financial
statements, notes and schedules filed as a part thereof or incorporated by
reference therein, copies of which may be obtained as provided in the preceding
paragraph. Statements contained herein and any accompanying Prospectus
Supplement concerning the provisions of any documents are necessarily summaries
of such documents and are not necessarily complete, and each statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the Commission, which may be obtained as described above.
No separate financial statements of any of the Trusts have been
included or incorporated by reference herein. The Company and the Trusts do not
consider that such financial statements would be material to holders of Trust
Preferred Securities because (i) all of the voting securities of each Trust are
owned, directly or indirectly, by the Company, a reporting company under the
Exchange Act, (ii) each of the Trusts has and will have no independent
operations, but exists for the sole purpose of issuing securities representing
undivided beneficial interests in its assets and investing the proceeds thereof
in Subordinated Debt Securities issued by the Company, and (iii) the Company's
obligations, which are described herein and in any accompanying Prospectus
Supplement, pursuant to each Declaration (as defined herein) (including the
obligation to pay the expenses of each Trust), the Indenture and any
supplemental indentures thereto, the Subordinated Debt Securities issued to any
of the Trusts and the Trust Guarantees, taken together, constitute a full and
unconditional guarantee, on a subordinated basis, by the Company of payments due
on the Trust Preferred Securities. See "The Trusts," "Description of Trust
Preferred Securities" and "Description of Trust Guarantee."
None of the Trusts are currently subject to the information reporting
requirements of the Exchange Act. Upon the effectiveness of the Registration
Statement, each Trust will become subject to such requirements; however, each of
the Trusts intends to seek and expects to receive exemption therefrom. Each of
the Trusts is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than its holding as trust assets the Subordinated Debt
Securities and the issuance of the Trust Securities.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 1-11083) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 (the "1998 Form 10-K").
2. The description of the Common Stock set forth in the
Company's Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act on April 3, 1992, and any amendment or report
filed for the purpose of updating such description.
3. The Company's Current Report filed on Form 8-K/A2 dated
March 31, 1999.
All documents and reports filed with the Commission by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated by reference in
this Prospectus and to be a part of this Prospectus from the dates of filing of
such documents or reports. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein or in the accompanying
Prospectus Supplement modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified and
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon written or oral request of such person, a copy of
any of the documents incorporated herein by reference (other than exhibits to
such documents that are not specifically incorporated by reference therein).
Written requests should be directed to Investor Relations, Boston Scientific
Corporation, One Boston Scientific Place, Natick, Massachusetts 01760-1537.
Telephone requests may be directed to (508) 650-8000.
CERTAIN FORWARD-LOOKING STATEMENTS
This Prospectus, the accompanying Prospectus Supplement and the
documents incorporated herein by reference contain forward-looking statements.
The Company desires to take advantage of the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995 and is including this statement
for the express purpose of availing itself of the protections of the safe harbor
with respect to all forward-looking statements. Forward-looking statements
contained in this Prospectus, the accompanying Prospectus Supplement and the
documents incorporated herein by reference include, but are not limited to,
statements with respect to, and the Company's performance may be affected by:
(a) the Company's ability to obtain benefits from the acquisition of Schneider
Worldwide, formerly a member of the Medical Technologies Group of Pfizer, Inc.
(the "Schneider Acquisition"); (b) the process, outlays and plan for the
integration of businesses acquired by the Company, and the successful and timely
implementation of the related plans of rationalization; (c) the impact and
timing of the Company's supply chain initiatives; (d) the potential impacts of
continued consolidation among healthcare providers, trends towards managed care
and economically motivated buyers, healthcare cost containment, more stringent
regulatory requirements and more vigorous enforcement activities; (e) the
Company's belief that it is well positioned to take advantage of opportunities
for growth that exist in the markets it serves; (f) the Company's continued
commitment to refine existing products and procedures and to develop new
technologies that provide simpler, less traumatic, less costly and more
efficient diagnosis and treatment; (g) risks associated with international
operations; (h) the potential effect of foreign currency fluctuations on
revenues, expenses and resulting margins and the trend toward increasing sales
and expenses denominated in foreign currencies; (i) the Company's belief that
its effective tax rate for 1999 will only increase slightly from 1998; (j) the
ability of the Company to manage accounts receivable, manufacturing costs and
inventory levels and mix and to react effectively to the changing managed care
environment and worldwide economic conditions;
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(k) the ability of the Company to meet its projected cash needs through the end
of 1999; (l) the ability of the global information systems to improve supply
chain management; (m) costs and risks associated with implementing Year 2000
compliance and business process reengineering; (n) timely and uninterrupted
supply of the NIR(R) coronary stent and the Company's cost to purchase the
NIR(R) stent; (o) the ability to realize improved long-term returns on the
Company's investments with a direct selling presence in emerging markets; (p)
the ability of the Company to obtain more permanent financing to re-finance a
portion of its commercial paper and amounts borrowed under the Company's
revolving credit facilities, to comply with its debt ratio through an equity
issuance and to place its commercial paper at reasonable rates; (q) the
Company's expectation that a minimum of $800 million of short-term debt
supported by the Company's revolving credit facilities will remain outstanding
through the next twelve months; (r) the Company's ability to fund development of
purchased technology and to realize value assigned to in-process research and
development and other intangible assets; (s) the impact of stockholder class
action, patent, product liability and other litigation, the outcome of the U.S.
Department of Justice investigation, and the adequacy of the Company's product
liability insurance; (t) the potential impact resulting from the euro
conversion, including adaptation of information technology systems, competitive
implications related to pricing and foreign currency considerations; (u) the
effects of finalization of accounting for the purchase of Schneider Worldwide;
and (v) the timing, size and nature of strategic initiatives available to the
Company. Several important factors, in addition to the specific factors
discussed in connection with each of the forward-looking statements contained
herein, in the accompanying Prospectus Supplement and in the documents
incorporated herein by reference, could affect the future results of the Company
and could cause those results to differ materially from those expressed in the
forward-looking statements contained herein, in the accompanying Prospectus
Supplement and in the documents incorporated herein by reference. Such
additional factors include, among other things, future economic, competitive and
regulatory conditions, demographic trends, third-party intellectual property,
financial market conditions and future business decisions of Boston Scientific
and its competitors, all of which are difficult or impossible to predict
accurately and many of which are beyond the control of Boston Scientific.
Therefore, the Company wishes to caution each reader of this Prospectus, the
accompanying Prospectus Supplement and the documents incorporated herein by
reference to consider carefully these factors as well as the specific factors
discussed with each forward-looking statement and as disclosed in the Company's
filings with the Securities and Exchange Commission as such factors, in some
cases, have affected, and in the future (together with other factors) could
affect, the ability of the Company to implement its business strategy and may
cause actual results to differ materially from those contemplated by the
statements expressed herein and in the documents incorporated herein by
reference.
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THE COMPANY
The Company is a worldwide developer, manufacturer and marketer of
minimally invasive medical devices. Medical professionals use the Company's
products in a broad range of interventional medical specialties, including
cardiology, gastroenterology, neuro-endovasular therapy, pulmonary medicine,
radiology, urology and vascular surgery. The Company's products are generally
inserted into the human body through natural openings or small incisions in the
skin and can be guided to most areas of the anatomy to diagnose and treat a wide
range of medical problems. These products provide effective alternatives to
traditional surgery by reducing procedural trauma, complexity, risk to the
patient, cost and recovery time. In recent years, the Company has bolstered its
growth through several strategic acquisitions and alliances. Most recently, on
September 10, 1998, the Company acquired Schneider Worldwide, formerly a member
of the Medical Technology Group of Pfizer Inc. ("Pfizer"), for approximately
$2.1 billion in cash. The purchase price was funded by the issuance of
commercial paper.
The principal executive offices of the Company are located at One
Boston Scientific Place, Natick, Massachusetts 01760-1537. Its telephone number
is (508) 650-8000.
TRUSTS
Each Trust is a statutory business trust formed under Delaware law
pursuant to (i) a separate declaration of trust (each, as amended and restated,
a "Declaration") executed by the Company as sponsor for such trust (the
"Sponsor"), the Regular Trustees (as defied herein) and the Delaware Trustee (as
defined herein) of such trust and (ii) the filing of a certificate of trust with
the Secretary of State of the State of Delaware on September 25, 1998, with
respect to BSC Capital Trust, and on September 29, 1998, with respect to the
other Trusts. The Company and each Institutional Trustee (as defined herein)
will qualify the applicable Declaration as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each Trust exists
for the exclusive purposes of (i) issuing and selling Trust Securities, (ii)
investing the gross proceeds from the sale of such Trust Securities in
Subordinated Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto.
The Company will own directly or indirectly all of the Trust Common
Securities of each Trust. The Trust Common Securities of each Trust will rank
pari passu, and the applicable Trust will make payments thereon pro rata, with
the Trust Preferred Securities of such Trust except that, if any event of
default has occurred and is continuing under its Declaration, the rights of
holders of the Trust Common Securities to payment in respect of distributions
and payments upon liquidation, redemption or otherwise will be subordinated to
the rights of holders of the Trust Preferred Securities of such Trust. The
Company will acquire Trust Common Securities of each of the Trusts in an
aggregate liquidation amount equal to at least 3% of the total capital of each
such Trust.
The term of each Trust is approximately 45 years, but each Trust may be
dissolved earlier as provided in its Declaration. The business and affairs of
each of the Trusts will be conducted by the trustees (the "Capital Trustees")
appointed by the Company as the direct or indirect holder of all of the Trust
Common Securities of each such Trust. As holder of the Trust Common Securities,
the Company will be entitled to appoint, remove or replace any of, or increase
or reduce the number of Capital Trustees of each of the Trusts. The applicable
Declaration governs the duties and obligations of the Capital Trustees. A
majority of the Capital Trustees (the "Regular Trustees") of each of the Trusts
will be persons who are employees or officers of, or who are affiliated with,
the Company. One Capital Trustee of each Trust will be a financial institution
that is unaffiliated with the Company and has minimum capital and surplus of not
less than $50.0 million. That institution acts as property trustee and as
indenture trustee (the "Institutional Trustee") for the purpose of compliance
with the provisions of the Trust Indenture Act pursuant to terms set forth in
the applicable Prospectus Supplement. In addition, unless the Institutional
Trustee for a Trust maintains a principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, one Capital
Trustee of such Trust will be an entity having a principal place of business in,
or a natural person resident of, the State of Delaware (the "Delaware Trustee").
The Company will pay all fees and expenses related to the Trusts and any
offering of Trust Securities.
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The rights of the holders of the Trust Preferred Securities, including
economic rights, rights to information and voting rights, are set forth in
Declaration, the Delaware Business Trust Act, as amended (the "Trust Act"), and
the Trust Indenture Act. See "Description of Trust Preferred Securities."
Unless otherwise specified in the applicable Prospectus Supplement, the
Institutional Trustee for each of the Trusts is The Chase Manhattan Bank;
Attention: Corporate Trust Administration. Unless otherwise specified in the
applicable Prospectus Supplement, The Chase Manhattan Bank Delaware will serve
as the Delaware Trustee for each of the Trusts, and its address in the State of
Delaware is 1201 North Market Street, Wilmington, New Castle County, Delaware
19801, Attention: Corporate Trust Administration. The principal place of
business of each of the Trusts is c/o Boston Scientific Corporation, One Boston
Scientific Place, Natick, Massachusetts 01760-1537, telephone number (508)
650-8000.
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USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the
Securities (including Subordinated Debt Securities issued to any of the Trusts
in connection with the investment by any such Trust of all of the proceeds from
the sale of Trust Preferred Securities) for general corporate purposes,
including, without limitation, repurchases or redemptions of the Company's
outstanding debt securities or other reductions of the Company's outstanding
borrowings, working capital, business acquisitions, investments in or loans to
subsidiaries, capital expenditures or for such other purposes as may be
specified in the applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of the Company on a
consolidated basis for the periods indicated were as follows (unaudited):
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............... 7.24 15.76 5.07 16.98
Coverage deficiency (in thousands)............... $(279,774)
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and the cumulative effect of a
change in accounting plus fixed charges. "Fixed charges" consist of interest
expense, capitalized interest, amortization of debt issuance expenses and
discount and an appropriate portion of rental expense that represents a
reasonable approximation of the interest factor. "Coverage deficiency" consist
of earnings, as defined above, less fixed charges.
The ratios of earnings to fixed charges for all periods presented are
not necessarily indicative of the results that may be expected for any future
periods, and reflect merger-related and special charges recorded in conjunction
with the Company's acquisitions and strategic alliances consummated through
December 31, 1998. The Company had a coverage deficiency in 1998 as a result of
noncash special charges of $646 million recorded in connection with the
acquisition of Schneider Worldwide and other merger-related initiatives. These
ratios should be read in conjunction with the Company's consolidated financial
statements (including notes thereto) included in the 1998 Form 10-K.
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DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. Particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to any series of Debt Securities will be described
in the Prospectus Supplement relating to such Debt Securities. This description
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, all of the provisions of the Indenture (as defined herein),
including the definitions therein of certain terms and those terms made part of
such Indenture by reference to the Trust Indenture Act, as in effect on the date
of such Indenture, and to such Debt Securities. Unless otherwise indicated,
certain capitalized terms used below and not defined have the respective
meanings assigned to them in the Indenture.
The Company may issue Debt Securities from time to time in one or more
series. Senior Debt Securities and/or Subordinated Debt Securities may be issued
under an indenture, as amended or supplemented from time to time (as so
supplemented or amended, the "Indenture") between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"), and in the form that has been filed
as an exhibit to the Registration Statement of which this Prospectus is a part.
The Indenture will be subject to and governed by the Trust Indenture Act.
General
The Debt Securities will be unsecured obligations of the Company. The
Indebtedness represented by (i) Senior Debt Securities will rank on a parity
with all other unsecured and unsubordinated Indebtedness of the Company and (ii)
Subordinated Debt Securities will be unsecured and subordinated in right of
payment to the prior payment in full of all Senior Indebtedness (as defined
below) of the Company. See "--Subordination."
The Indenture will provide for the issuance by the Company from time to
time of Debt Securities in one or more series. The aggregate principal amount of
Debt Securities which may be issued under the Indenture will be unlimited and
the Indenture will set forth the specific terms of any series of Debt Securities
or provide that such terms shall be set forth in, or determined pursuant to, an
authorizing resolution and/or a supplemental indenture, if any, relating to such
series.
Reference is made to the Prospectus Supplement relating to the
particular series of Debt Securities offered thereby for a description of the
terms of such Debt Securities in respect of which this Prospectus is being
delivered, including the following, as applicable:
(i) the form and title of such Debt Securities and whether
such Debt Securities are Senior Debt Securities or Subordinated Debt
Securities;
(ii) any limit on the aggregate principal amount of such
series of Debt Securities;
(iii) the date or dates on which the principal of such Debt
Securities is payable, or the method by which such dates will be
determined or extended;
(iv) the rate or rates at which such Debt Securities shall
bear interest, if any, the date or dates from which such interest will
accrue, the Interest Payment Dates on which such interest will be
payable, the right, if any, of the Company to defer or extend an
Interest Payment Date and the Regular Record Date, if any, for interest
payable on any Registered Security on any Interest Payment Date, or the
method by which any of the foregoing shall be determined, and the basis
upon which interest will be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(v) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of,
and premium, if any, and interest, if any, on such Debt Securities will
be payable, where any Registered Securities of the series may be
surrendered for registration of transfer,
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where such Debt Securities may be surrendered for exchange, where such
Debt Securities that are convertible or exchangeable may be surrendered
for conversion or exchange, as applicable and, if different than the
location specified in the Indenture, the place or places where notices
or demands to or upon the Company in respect of such Debt Securities
and such Indenture may be served;
(vi) the period or periods within which, the price or prices
at which, the currency or currencies in which, and other terms and
conditions upon which such Debt Securities may be redeemed, in whole or
in part, at the option of the Company or a Holder, if the Company or a
Holder thereof is to have that option;
(vii) the obligation or the right, if any, of the Company to
redeem, repay or purchase such Debt Securities pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which, the
currency or currencies in which, and other terms and conditions upon
which such Debt Securities will be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(viii) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of such series will be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of such series will be issuable;
(ix) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(x) if other than the principal amount thereof, the portion of
the principal amount of such Debt Securities that will be payable upon
declaration of acceleration of the Maturity thereof under the
Indenture, or the method by which such portion shall be determined;
(xi) if other than U.S. dollars, the currency or currencies
(including currency unit or units) in which payment of principal of, or
premium, if any, or interest, if any, on such Debt Securities will be
payable or in which such Debt Securities will be denominated, and the
particular provisions applicable thereto in accordance with, in
addition to or in lieu of any provisions of the Indenture;
(xii) whether the amount of payments of principal of, or
premium, if any, or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more currencies, commodities, equity indices or other indices), and the
manner in which such amounts will be determined;
(xiii) whether the principal of, or premium, if any, or
interest, if any, on such Debt Securities are to be payable, at the
election of the Company or a Holder thereof, in a currency or
currencies other than that in which such Debt Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which
such election may be made, and the time and manner of determining the
exchange rate between the currency in which such Debt Securities are
denominated or stated to be payable and the currency or currencies in
which such Debt Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of
the Indenture;
(xiv) the designation of the initial Exchange Rate Agent, if
any;
(xv) the applicability, if any, of the defeasance or covenant
defeasance provisions of the Indenture to such Debt Securities, and any
provisions in modification of, in addition to or in lieu of any of the
provisions of the Indenture;
(xvi) provisions, if any, granting special rights to Holders
of such Debt Securities upon the occurrence of such events as may be
specified;
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(xvii) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company specified in the
Indenture with respect to such Debt Securities, whether or not such
Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(xviii) whether such Debt Securities are to be issuable as
Registered Securities, Bearer Securities (with or without coupons), or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any such Debt Securities are to be issuable
initially in temporary global form and whether any such Debt Securities
are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Debt
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the Indenture, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), and the circumstances under which and the place or places
where any such exchanges may be made and if Debt Securities of any
series are to be issuable in global form, the identity of any initial
depository therefor;
(xix) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series will be dated if other than the date of original issuance
of the first Debt Security of the series to be issued;
(xx) the Person to whom any interest in any Registered
Security of the series will be payable, if other than the Person in
whose name that Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if other than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in the
Indenture;
(xxi) if such Debt Securities 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/or
terms of such certificates, documents or conditions;
(xxii) if such Debt Securities are to be issued upon the
exercise of warrants, the time, manner and place for such Debt
Securities to be authenticated and delivered;
(xxiii) whether, under what circumstances and the currency or
currencies in which the Company will pay Additional Amounts as
contemplated by the Indenture on such Debt Securities to any Holder who
is not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option);
(xxiv) if such Debt Securities are to be convertible into or
exchangeable for any securities of any Person (including the Company),
the terms and conditions upon which such Debt Securities will be so
convertible or exchangeable;
(xxv) whether the Debt Securities are subject to subordination
and the terms of such subordination; and
(xxvi) any other terms, conditions, rights and preferences
relating to such Debt Securities.
With respect to Debt Securities of any series denominated in U.S.
dollars, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), will be
issuable
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in denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), will be issuable in a denomination of
$5,000, unless otherwise provided in the applicable Prospectus Supplement. The
Prospectus Supplement relating to a series of Debt Securities denominated in any
currency other than U.S. dollars or a composite currency will specify the
denominations thereof.
One or more series of Debt Securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at
a rate which is below market rates at the time of issuance. One or more series
of Debt Securities may be floating rate debt securities which are exchangeable
for fixed rate debt securities. The Company will describe certain federal income
tax consequences and special considerations, if any, applicable to each series
of Debt Securities in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the applicable Prospectus Supplement,
interest, if any, on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date will be paid to the
Person in whose name such Security is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose as set forth in the Indenture; provided, however,
that the Company may, at its option, pay each installment of interest, if any,
on any Registered Security by (i) mailing a check for such interest installment,
payable to or upon the written order of the Person entitled thereto as set forth
in the Indenture, to the address of such Person as it appears on the Security
Register or (ii) transferring an amount equal to such interest installment to an
account located in the United States maintained by the payee.
Holders may present Debt Securities for exchange and may present
registered Debt Securities for transfer, in the manner, at the places and
subject to the restrictions set forth in the Indenture and the Debt Securities
and described in the applicable Prospectus Supplement. The Company will charge
no service fees for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more fully registered Global Securities that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the Prospectus Supplement relating to such series. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a Global Security may not be transferred except as a whole by the Depositary for
such Global Security 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 of such Depositary or a nominee of
such successor.
The specific terms of the Depositary arrangement with respect to any
Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all Depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated by the
underwriters or agents with respect to such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of participant's
interests in a Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depositary
for such Global Security. Ownership of beneficial interests in a Global Security
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by participants or persons that hold through
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
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So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Debt Securities of the series represented
by such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
Principal, premium, if any, and any interest payments on Debt
Securities registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of a
Global Security representing such Debt Securities. None of the Company, the
Trustee, any Paying Agent or the Security Registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Security or Securities for such Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt
Securities, upon receipt of any payment of principal, premium or interest, will
credit immediately participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the Global
Security or Securities for such Debt Securities as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security or Securities held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
participants.
Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms acceptable to the
Company, receive Debt Securities of such series in definitive form. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to have Debt Securities of the series represented by such Global
Security equal in principal amount to such beneficial interest registered in its
name and will be entitled to physical delivery of such Debt Securities in
definitive form.
Events of Default
The Indenture provides that the following shall constitute Events of
Default with respect to any series of Debt Securities thereunder:
(i) default in the payment of any interest on any Debt
Security of such series, when it becomes due and payable, and
continuance of such default for a period of 30 days;
(ii) default in the payment of the principal of or premium, if
any, on any Debt Security of such series when due either at its
Maturity, upon acceleration, redemption or otherwise;
(iii) default in the deposit of any sinking fund payment, when
and as due by the terms of the Debt Securities of such series and the
Indenture;
(iv) default in the performance, or breach, of any covenant or
agreement of the Company in the Indenture which affects or is
applicable to Debt Securities of such series (other than a default in
the performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in the Indenture), and continuance of
such default or breach for a period of 60 days after there has been
given to the Company by the Trustee, or to the Company and the Trustee
by Holders of at least 25% in aggregate principal amount of all
outstanding Securities of such series, a written notice thereof;
(v) certain events in bankruptcy, insolvency or reorganization
of the Company; and
(vi) any other Event of Default provided with respect to Debt
Securities of such series.
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No Event of Default with respect to a particular series of Debt
Securities issued under the Indenture necessarily constitutes an Event of
Default with respect to any other series of Debt Securities issued thereunder.
The Indenture provides that if an Event of Default specified in clause
(i), (ii), (iii), (iv) or (vi) above occurs and is continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of such series may declare the principal of all such
Debt Securities (or, in the case of Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount thereof as may be
specified in the terms thereof) to be due and payable immediately. If an Event
of Default specified in clause (v) above occurs and is continuing, then the
principal of all such Debt Securities (or, in the case of Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
thereof as may be specified in the terms thereof) will be due and payable
immediately, without any declaration or other act on the part of the Trustee or
any Holder. In certain cases, Holders of a majority in principal amount of the
outstanding Debt Securities of any series may, on behalf of Holders of all such
Debt Securities, rescind and annul a declaration of acceleration.
The Indenture provides that the Trustee will not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by the
Indenture. The Indenture provides that no Holder of Debt Securities of any
series may institute any proceedings, judicial or otherwise, to enforce the
Indenture except in the case of failure of the Trustee thereunder to act for 60
days after it has received a request to enforce the Indenture by Holders of at
least 25% in aggregate principal amount of the then Outstanding Debt Securities
of such series (in the case of an Event of Default specified in clause (i),
(ii), (iii), (iv) or (vi) above) or a request to enforce the Indenture by
Holders of at least 25% in aggregate principal amount of all of the Debt
Securities then Outstanding (in the case of an Event of Default specified in
clause (v) above), and an offer of reasonable indemnity. This provision will not
prevent any Holder of Debt Securities from enforcing payment of principal
thereof, and premium, if any, and interest, if any, thereon at the respective
due dates thereof. Holders of a majority in aggregate principal amount of the
Debt Securities of any series then outstanding may 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 it with respect to Debt Securities of
such series. The Trustee may, however, refuse to follow any direction that it
determines may not lawfully be taken or would be illegal or in conflict with
such Indenture or involve it in personal liability or which would be unjustly
prejudicial to Holders not joining therein.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to any series of Debt Securities
thereunder, give to Holders of Debt Securities of such series notice of such
default if such default has not been cured or waived. Except in the case of a
default in the payment of principal of, or premium, if any, or interest on, or
in the payment of any sinking fund installment in respect of, any Debt
Securities of such series, the Trustee will be protected in withholding such
notice if it determines in good faith that the withholding of such notice is in
the interest of Holders of the Debt Securities of such series.
The Company will be required to file annually with the Trustee an
Officers' Certificate as to compliance with all conditions and covenants under
the terms of the Indenture.
Modification and Waiver
Modifications of and amendments to the Indenture may be made by the
Company and the Trustee thereunder with the consent of Holders of a majority in
principal amount of the outstanding Debt Securities of each series issued under
the Indenture that is affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby: (i) change the Stated
Maturity of the principal of, or premium, if any, or any installment of interest
on any Debt Security of such series, or reduce the principal amount thereof, or
premium, if any, or the rate of interest, if any, thereon, or change any
obligation of the Company to pay Additional Amounts (except as contemplated or
permitted by the Indenture), or reduce the amount of principal of an Original
Issue Discount Security of such series that would be due and payable upon a
declaration of acceleration of the Maturity thereof or the amount thereof
provable in bankruptcy, or adversely affect any right of repayment at the option
of any Holder of any Debt Security of such series, or change any Place of
Payment where, or the currency in which, any Debt Security of such series or
premium, if any, or interest thereon
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is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the Redemption
Date or Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Debt Security; (ii) reduce the percentage in principal
amount of the Outstanding Debt Securities of any series, the consent of whose
Holders is required for any supplemental indenture, for any waiver of compliance
with certain provisions of the Indenture or certain defaults applicable to such
series thereunder and their consequences provided for in the Indenture, or
reduce the quorum or voting with respect to Debt Securities of such series; or
(iii) modify any of the provisions relating to supplemental indentures requiring
the consent of Holders or relating to the waiver of past defaults or relating to
the waiver of certain covenants, except to increase any such percentage or to
provide that certain other provisions of the Indenture which affect such series
cannot be modified or waived without the consent of the Holder of each
Outstanding Debt Security affected thereby.
The Company may, with respect to any series of Debt Securities, omit in
any particular instance to comply with certain restrictive provisions of the
Indenture if Holders of at least a majority in principal amount of all
Outstanding Debt Securities affected by such term, provision or condition, by
Act of such Holders, waive such compliance in such instance with such term,
provision or condition, but no such waiver will extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver will become effective, the obligations of the Company and the duties of
the Trustee to Holders of Debt Securities of such series in respect of any such
term, provision or condition will remain in full force and effect. Holders of a
majority in principal amount of the outstanding Debt Securities of each series
(in the case of an Event of Default specified in clause (i), (ii), (iii), (iv)
or (vi) in "Events of Default," above) or the Holders of a majority in principal
amount of all of the Debt Securities then Outstanding (in the case of an Event
of Default specified in clause (v) in "Events of Default," above) may, on behalf
of all such Holders, waive any past default under the Indenture with respect to
Debt Securities of that series except a default in the payment of the principal
of, or premium, if any, or interest, if any, on any such Debt Security and
except a default in respect of a covenant or provision the modification or
amendment of which would require the consent of the Holder of each outstanding
Debt Security affected thereby.
Merger, Consolidation, or Sale of Assets
The Company shall not consolidate with or merge with or into any other
corporation or transfer all or substantially all of its property and assets as
an entirety to any Person, unless (i) either the Company shall be the continuing
Person, or the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or to which all or substantially all of the
properties and assets of the Company as an entirety are transferred is a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia which expressly assumes all of the
obligations of the Company under each series of Debt Securities and the
Indenture with respect to each such series and (ii) immediately before and
immediately after giving effect to such transaction, no Event of Default and no
event which, after notice or passage of time or both, would become an Event of
Default shall have occurred and be continuing. Notwithstanding the foregoing,
any Subsidiary may consolidate with, merge with or into or transfer all or part
of its properties and assets to the Company or any other Subsidiary or
Subsidiaries.
Limitation on Liens
The Indenture will provide that with respect to each series of Senior
Debt Securities, unless otherwise set forth in the related Prospectus
Supplement, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for: (i) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP; (ii) carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business that are not overdue for a period of
more than 60 days or which are being contested in good faith by appropriate
proceedings; (iii) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-
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insurance arrangements; (iv) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business; (v) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company or
such Subsidiary; (vi) Liens in existence on the date of the first issuance by
the Company of Senior Debt Securities issued pursuant to the Indenture; provided
that no such Lien is spread to cover any additional property after such date and
that the amount of Debt secured thereby is not increased; (vii) Liens securing
Debt of the Company and its Subsidiaries incurred to finance the acquisition of
fixed or capital assets; provided that (A) such Liens will be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (B) such Liens do not at any time encumber any property other than the
property financed by such Debt and (C) the amount of Debt secured thereby is not
increased; (viii) Liens on the property or assets of a corporation that becomes
a Subsidiary after the date hereof; provided that (A) such Liens existed at the
time such corporation became a Subsidiary and were not created in anticipation
thereof, (B) any such Lien is not spread to cover any property or assets or such
corporation after the time such corporation becomes a Subsidiary, and (C) the
amount of Debt secured thereby is not increased; and (ix) Liens (not otherwise
permitted hereunder) (A) which secure obligations not exceeding the greater of
$100.0 million or 15% of Consolidated Net Worth of the Company, in each case in
aggregate amount at any time outstanding, or (B) with respect to which the
Company effectively provides that the Senior Debt Securities outstanding
hereunder are secured equally and ratably with (or, at the option of the
Company, prior to) the Debt secured by such Lien.
Defeasance
If so specified in the Prospectus Supplement with respect to Debt
Securities of any series, the Company at its option, (i) will be discharged from
any and all obligations in respect of the Debt Securities of such series (except
for certain obligations to register the transfer or exchange of Debt Securities
of such series, replace stolen, lost or mutilated Debt Securities of such
series, maintain Paying Agencies, and hold money for payment in trust) or (ii)
will not be subject to certain specified covenants with respect to the Debt
Securities of such series as set forth in the related Prospectus Supplement, in
each case if the Company deposits with the Trustee, in trust, money or
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money in an amount
sufficient to pay all the principal (including any mandatory sinking fund
payments) of, and interest on, the Outstanding Debt Securities of such series on
the dates such payments are due in accordance with the terms of such Debt
Securities. To exercise any such option, the Company is required to deliver to
the Trustee an Opinion of Counsel to the effect that the deposit and related
defeasance would not cause the Holders of the Debt Securities of such series to
recognize income, gain or loss for federal income tax purposes and, in the case
of a discharge pursuant to clause (i), either a ruling to such effect received
from or published by the U.S. Internal Revenue Service or an opinion that there
has been a change in applicable federal income tax law to such effect. The
Company is required to deliver to the Trustee an Officer's Certificate stating
that no Event of Default with respect to the Debt Securities of such series has
occurred and is continuing.
Conversion Rights and Exchange Rights
The terms and conditions, if any, upon which any of the Debt Securities
are convertible into or exchangeable for Common Stock or other securities or
property of the Company will be set forth in the related Prospectus Supplement.
Such terms shall include the conversion or exchange price (or manner of
calculation thereof), the exchange or conversion period, provisions as to
whether conversion or exchange is mandatory at the option of the Holder or at
the option of the Company, and may include provisions pursuant to which the
number of shares, other securities or property of the Company to be received by
the Holders of Debt Securities would be calculated. The conversion or exchange
price of any Debt Securities of any series that is convertible into Common
Stock, Preferred Stock or Depositary Shares of the Company may be adjusted for
any stock dividends, stock splits, reclassification, combinations or similar
transactions, as set forth in the applicable Prospectus Supplement.
Subordination
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Certain provisions of the Indenture relating to the subordination of
the Subordinated Debt Securities are summarized below. The extent to which a
particular series of Subordinated Debt Securities is subordinated to other
indebtedness of the Company will be set forth in the Prospectus Supplement for
that series and the Indenture may be modified by a supplemental indenture to
reflect such subordination provisions. The particular terms of subordination of
an issue of Subordinated Debt Securities may supersede the general provisions of
the Indenture summarized below.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, payment of the principal of, premium, if any, and
interest, if any, on the Subordinated Debt Securities will be subordinated to
the extent provided in the Indenture in right of payment to the prior payment in
full of all Senior Indebtedness, but the obligation of the Company to make
payment of the principal of and premium, if any, and interest, if any, on the
Subordinated Debt Securities will not otherwise be affected. Except as provided
in a Prospectus Supplement and the related supplemental indenture, if any, no
payment of principal or interest may be made on the Subordinated Debt Securities
at any time if a default on Senior Indebtedness exists that permits the holders
of such Senior Indebtedness to accelerate its maturity and the default is the
subject of judicial proceedings or the Company has received notice of such
default. Such supplemental indenture may also provide that Subordinated Debt
Securities issued thereunder are subordinated and junior in right of payment to
the prior payment in full of future senior subordinated debt securities, if any.
After all Senior Indebtedness is paid in full and until the Subordinated Debt
Securities are paid in full, Holders of the Subordinated Debt Securities will be
subrogated to the rights of holders of Senior Indebtedness to the extent that
distributions otherwise payable to such Holders have been applied to the payment
of Senior Indebtedness. By reason of such subordination, in the event of any
distribution of assets upon insolvency, certain general creditors of the Company
may recover more, ratably, than holders of Subordinated Debt Securities.
The Trustee
The Indenture provides that, except during the continuance of an Event
of Default, the Trustee will perform only such duties as are specifically set
forth in the Indenture. During the existence of an Event of Default, the Trustee
will exercise such rights and powers vested in it under the Indenture and use
the same degree of care and skill in its exercise as a prudent person would
exercise under the circumstances in the conduct of such person's own affairs.
The Indenture and the provisions of the Trust Indenture Act
incorporated by reference therein contain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of claims
in certain cases or to realize on certain property received by it in respect of
any such claim as security or otherwise. The Trustee is permitted to engage in
other transactions with the Company or any Affiliate; provided, however, that if
such Trustee acquires any conflicting interest (as defined in the Indenture or
in the Trust Indenture Act), it must eliminate such conflict or resign.
No Personal Liability of Officers, Directors, Employees or Stockholders
No director, officer, employee or stockholder, as such, of the Company
or any of its affiliates will have any personal liability in respect of the
obligations of the Company under the Indenture or the Debt Securities by reason
of his, her or its status as such.
Applicable Law
The Indenture is, and the Debt Securities offered hereby will be,
governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets
forth certain general terms and provisions of any series of Preferred Stock to
which any Prospectus Supplement may relate. Particular terms of the Preferred
Stock offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to any
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series of Preferred Stock so offered will be described in the Prospectus
Supplement relating to such Preferred Stock. This description does not purport
to be complete and is subject to and qualified in its entirety by reference to
the provisions of the Second Restated Certificate of Incorporation of the
Company as amended (the "Charter"), and the Certificate of Designation (the
"Certificate of Designation") relating to a particular series of Preferred Stock
which will be in the form filed or incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of Preferred Stock.
General
Under the Charter and the Restated By-laws of the Company (the
"By-laws"), which are filed as exhibits to the Registration Statement of which
this Prospectus is a part, the board of directors of the Company (the "Board of
Directors") is authorized without further shareholder action to adopt
resolutions providing for the issuance of up to 50,000,000 shares of Preferred
Stock, in one or more series, and to fix by resolution any of the powers,
designations, preferences and relative dividend participation, option or other
rights thereof, including dividend rights, conversion rights, voting rights,
redemption terms and liquidation preferences, and the number of shares
constituting each such series. Preferred Stock, upon issuance against full
payment of the purchase price therefor, will be fully paid and nonassessable. As
of the date of this Prospectus, the Company had no shares of Preferred Stock
outstanding.
The Prospectus Supplement relating to a particular series of Preferred
Stock offered will describe the specific terms, including, where applicable: (i)
the title, designation, number of shares and stated value of such Preferred
Stock; (ii) the price at which such Preferred Stock will be issued; (iii) the
dividend rates, if any (or method of calculation), whether such rate is fixed or
variable or both, and the dates on which dividends will be payable, whether such
dividends will be cumulative or noncumulative and, if cumulative, the dates from
which dividends shall commence to cumulate; (iv) the dates on which the
Preferred Stock will be subject to redemption and the applicable redemption
prices; (v) any redemption or sinking fund provisions; (vi) the convertibility
or exchangeability of such Preferred Stock; (vii) if other than United States
dollars, the currency or currencies (including composite currencies) in which
such Preferred Stock is denominated and/or in which payments will or may be
payable; (viii) the method by which amounts in respect of such Preferred Stock
may be calculated and any commodities, currencies or indices, or the value, rate
or price relevant to such calculation; (ix) the place where dividends and other
payments on the Preferred Stock are payable and the identity of the transfer
agent, registrar and dividend disbursement agent for the Preferred Stock; (x)
any listing of such Preferred Stock on any securities exchange; and (xi) any
additional dividend, liquidation, redemption, sinking fund, voting and other
rights, preferences, privileges, limitations and restrictions.
The federal income tax consequences and special considerations
applicable to any such series of Preferred Stock will be generally described in
the Prospectus Supplement related thereto.
Rank
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Preferred Stock, each series of Preferred Stock will rank
pari passu as to dividends and liquidation rights in all respects with each
other series of Preferred Stock.
Dividends
Holders of Preferred Stock of each series will be entitled to receive
cash dividends, when and as declared by the Board of Directors out of assets of
the Company legally available for payment, at such rates and on such dates as
will be set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Each dividend will be payable to holders of record as they
appear on the stock books of the Company on the record dates fixed by the Board
of Directors or a duly authorized committee thereof. Different series of the
Preferred Stock may be entitled to dividends at different rates or based upon
different methods of determination. Such rates may be fixed or variable or both.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative as provided in the Prospectus Supplement relating thereto. Except
as provided in the related Prospectus Supplement, no series of Preferred Stock
will be entitled to participate in the Company's earnings or assets.
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Liquidation Rights
Unless otherwise stated in the related Prospectus Supplement, in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of each series of Preferred Stock will be entitled to
receive out of assets of the Company available for distribution to shareholders,
before any distribution of assets is made to holders of the Common Stock or any
other class of stock ranking junior to such series of Preferred Stock upon
liquidation, liquidating distributions in an amount set forth in the Prospectus
Supplement related to such series of Preferred Stock, plus an amount equal to
all accrued and unpaid dividends up to the date fixed for distribution for the
current dividend period and, if such series of the Preferred Stock is
cumulative, for all dividend periods prior thereto, all as set forth in the
Prospectus Supplement with respect to such series of Preferred Stock. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, amounts payable with respect to a series of Preferred Stock and any
other shares of capital stock of the Company ranking pari passu as to any
distribution with such series of Preferred Stock are not paid in full, holders
of such series of Preferred Stock and of such other shares will share ratably in
any such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment in
full of the liquidating distribution to which they are entitled, holders of
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company.
Neither the sale, conveyance, exchange or transfer of all or
substantially all of the property and assets of the Company, the consolidation
or merger of the Company with or into any other corporation, nor the merger or
consolidation of any other corporation into or with the Company, will be deemed
to be a liquidation, dissolution or winding up of the Company.
Redemption and Sinking Fund
The terms, if any, on which shares of a series of Preferred Stock may
be subject to optional or mandatory redemption, in whole or in part, or may have
the benefit of a sinking fund, will be set forth in the Prospectus Supplement
relating to such series.
Voting Rights
Except as indicated below or in the applicable Prospectus Supplement,
or except as expressly required by applicable law, holders of Preferred Stock
issued pursuant to this Prospectus and any related Prospectus Supplement will
not be entitled to vote.
Conversion and Exchange Rights
The terms, if any, on which shares of any series of Preferred Stock are
convertible or exchangeable will be set forth in the Prospectus Supplement
relating thereto. The Prospectus Supplement will describe the securities or
rights into which such shares of Preferred Stock are convertible or exchangeable
(which may include other Preferred Stock, Debt Securities, Depositary Shares,
Common Stock or other securities or rights of the Company (including rights to
receive payment in cash or securities based on the value, rate or price of one
or more specified commodities, currencies or indices) or securities of other
issuers or a combination of the foregoing), and the terms and conditions upon
which such conversions or exchanges will be effected including the initial
conversion or exchange prices or rules, the conversion or exchange period and
any other related provisions. Such terms may include provisions for conversion
or exchange, either mandatory, at the option of the holder, or at the option of
the Company, in which case the consideration to be received by holders of such
series of Preferred Stock would be calculated as of a time and in the manner
stated in such Prospectus Supplement.
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Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement agent for each
series of Preferred Stock will be designated in the related Prospectus
Supplement.
DESCRIPTION OF DEPOSITARY SHARES
The following description of the terms of the Depository Shares sets
forth certain general terms and provisions of Depositary Shares to which any
Prospectus Supplement may relate. Particular terms of the Depositary Shares
offered by any Prospectus Supplement, and the related Deposit Agreement and
Depositary Receipt, and the extent, if any, to which such general provisions may
apply to such Deposit Agreement, Depositary Shares and Depositary Receipt, will
be described in the Prospectus Supplement relating to such Depositary Shares.
This description does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the provisions of the applicable
Deposit Agreement, which will be in the form filed or incorporated by reference
in the Registration Statement of which this Prospectus is a part at or prior to
the time of the issuance of such Depositary Shares, as well as the Charter or
any Certificate of Designation describing the applicable series of Preferred
Stock.
General
The Company may, at its option, elect to offer fractional interests in
shares of a series of Preferred Stock as Depositary Shares, rather than full
shares of Preferred Stock. In such event, receipts ("Depositary Receipts") for
such Depositary Shares will be issued by the Company, each of which will
represent a fraction of a share of a particular class or series of Preferred
Stock, as described in the related Prospectus Supplement.
Shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a separate deposit agreement (a "Deposit
Agreement"), between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50 million (a "Preferred Stock Depositary").
The Prospectus Supplement relating to a series of Depositary Shares will set
forth the name and address of the Depositary with respect to such Depositary
Shares. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of a
share of Preferred Stock represented by such Depositary Share, to all of the
rights, preferences and privileges of the Preferred Stock represented thereby
(including dividend, voting, conversion, exchange, redemption, and liquidation
rights, if any).
Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Depositary Receipts will be
distributed to those persons purchasing the fractional interests in shares of
Preferred Stock as described in the applicable Prospectus Supplement.
Dividends and Other Distributions
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions received in respect of a series of Preferred Stock to
the record holders of Depositary Receipts relating to such Preferred Stock in
proportion, insofar as possible, to the number of such Depositary Receipts owned
by such holders on the relevant record date (subject to certain obligations of
holders to file proofs, certificates and other information and to pay certain
charges and expenses to such Preferred Stock Depositary). The Preferred Stock
Depositary will distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and the balance not so distributed will be held by the Preferred Stock
Depositary and added to and treated as part of the next sum received by such
Preferred Stock Depositary for distribution to record holders of Depositary
Shares then outstanding.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, in proportion to the number of such
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Depositary Shares owned by such holders, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case the
Preferred Stock Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable to effect such distribution,
including the public or private sale of such property and distribution of the
net proceeds from such sale to such holders.
The amount so distributed to record holders of Depositary Receipts in
any of the foregoing cases will be reduced by any amount required to be withheld
by the Company or the Preferred Stock Depositary on account of taxes.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock will be made available to holders of Depositary
Shares.
Redemption of Depositary Shares
If a series of Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Preferred Stock Depositary resulting from redemption, in whole
or in part, of such class or series of Preferred Stock held by the Preferred
Stock Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price and other amounts per share, if any,
payable in respect of such class or series of Preferred Stock. Whenever the
Company redeems Preferred Stock held by the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date the number
of Depositary Shares representing shares of Preferred Stock so redeemed. If
fewer than all of the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be determined
to be equitable by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price upon such redemption. Any funds deposited by the Company with
the Preferred Stock Depositary for any Depositary Shares which the holders
thereof fail to redeem shall be returned to the Company after a period of two
years from the date such funds are so deposited.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of a class
or series of Preferred Stock are entitled to vote, the Preferred Stock
Depositary will mail the information contained in such notice of meeting to
record holders of the Depositary Receipts evidencing the Depositary Shares of
such class or series of Preferred Stock. Each record holder of such Depositary
Receipts on the record date (which will be the same date as the record date for
the related class or series of Preferred Stock) will be entitled to instruct the
Preferred Stock Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Stock represented by such holder's Depositary Shares.
The Preferred Stock Depositary will endeavor, insofar as practicable, to vote
the number of shares of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the Preferred Stock to the
extent it does not receive specific instructions from the holder of Depositary
Shares representing such shares of Preferred Stock. The Preferred Stock
Depositary will not be responsible for any failure to carry out any instruction
to vote, or for the manner or effect of any such vote made, as long as any such
action or non-action is taken in good faith and does not result from the
negligence or willful misconduct of the Preferred Stock Depositary.
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Liquidation Preference
In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, holders of each Depositary Receipt
will be entitled to the fraction of the liquidation preference accorded each
share of related Preferred Stock as set forth in the related Prospectus
Supplement.
Conversion and Exchange of Preferred Stock
If any series of Preferred Stock underlying the Depositary Shares is
subject to provisions relating to its conversion or exchange, as set forth in
the applicable Prospectus Supplement relating thereto, each record holder of
Depositary Receipts will have the right or obligation to convert or exchange the
Depositary Shares represented by such Depositary Receipts pursuant to the terms
thereof.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended at any time by agreement
between the Company and the Preferred Stock Depositary. However, amendments, if
any, which materially and adversely alter the rights of holders of Depositary
Receipts or that would be materially and adversely inconsistent with the rights
of holders of the underlying Preferred Stock, will be ineffective unless such
amendment has been approved by holders of at least a majority of the Depositary
Shares then outstanding under such Deposit Agreement. Every holder of
outstanding Depositary Receipts at the time such amendment, if any, becomes
effective will be deemed, by continuing to hold such Depositary Receipt, to
consent to such amendment and to be bound by the applicable Deposit Agreement as
amended thereby.
A Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depositary if a majority of
each class or series of Preferred Stock subject to such Deposit Agreement
consents to such termination, whereupon the Preferred Stock Depositary will
deliver or make available to each holder of Depositary Receipts, upon surrender
of the Depositary Receipts held by such holder, such number of whole or
fractional shares of Preferred Stock as are represented by the Depositary Shares
evidenced by such Depositary Receipts, together with any other property held by
the Preferred Stock Depositary with respect to such Depositary Receipts.
Additionally, a Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares related thereto have been redeemed, (ii) there has
been a final distribution in respect of the Preferred Stock underlying such
Depositary Shares in connection with any liquidation, dissolution or winding up
of the Company and such distribution has been distributed to the holders of the
related Depositary Receipts or (iii) each share of related Preferred Stock has
been converted into capital stock of the Company not so represented by
Depositary Shares.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay the Preferred Stock Depositary's fees and charges in connection
with the initial deposit of the Preferred Stock and initial issuance of
Depositary Receipts and any redemption or conversion of the Preferred Stock.
Holders of Depositary Receipts will pay all other transfer and other taxes,
governmental charges and fees and charges of the Preferred Stock Depositary that
are not expressly provided for in the Deposit Agreement.
Resignation and Removal of Depositary
A Preferred Stock Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any time
remove any Preferred Stock Depositary. Any such resignation or removal will take
effect upon the appointment of a successor Depositary and such successor
Depositary's acceptance of the appointment. Such successor Depositary must be
appointed within 60 days after delivery of the notice of resignation or removal
and must be a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least $50.0 million.
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Miscellaneous
The Preferred Stock Depositary will forward all reports and
communications from the Company which are delivered to the Preferred Stock
Depositary and which the Company is required or otherwise determines to furnish
to holders of the Preferred Stock.
Neither any Preferred Stock Depositary nor the Company will be liable
if it is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under a Deposit Agreement. The obligations of the
Company and any Preferred Stock Depositary under a Deposit Agreement will be
limited to performing in good faith their duties thereunder (in the case of any
action or inaction in the voting of a class or series of Preferred Stock
represented by the Depositary Shares), gross negligence or willful misconduct
excepted. The Company and any Preferred Stock Depositary will not be obligated
under the Deposit Agreement to prosecute or defend any legal proceeding in
respect of any Depositary Shares, Depositary Receipts or shares of any Preferred
Stock represented thereby unless satisfactory indemnity is furnished. The
Company and the Preferred Stock Depositary may rely upon written advice of
counsel or accountants, or information provided by persons presenting shares of
Preferred Stock for deposit, holders of Depositary Receipts or other persons
believed to be competent to give such information and on documents believed to
be genuine and to have been signed and presented by the proper party or parties.
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
certain general provisions of the Common Stock as contained in the Charter and
By-laws and is qualified in its entirety by reference to the Charter and
By-laws.
General
The Company is currently authorized to issue up to of 600,000,000
shares of Common Stock. As of March 15, 1999, there were approximately 394.9
million shares of Common Stock outstanding. All outstanding shares of Common
Stock are fully paid and nonassessable. The Common Stock is listed on the NYSE
under the symbol "BSX."
Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights and the Common Stock is not subject to redemption. The rights,
preferences and privileges of holders of Common Stock are subject to, and may be
adversely affected by, the rights of holders of any series of Preferred Stock,
whether currently outstanding or designated and issued in the future. See
"Description of Preferred Stock."
Dividends
Subject to the preferences of holders of Preferred Stock, holders of
Common Stock are entitled to dividends and other distributions when, as and if
declared by the Board of Directors out of funds legally available therefor and
shall share equally on a per share basis in all such dividends and other
distributions.
Voting Rights
Except as otherwise provided by law or by the designation of the
preferences, limitations and relative rights of any series of Preferred Stock,
the voting power of the Company is held by holders of the Common Stock. Each
holder of Common Stock is entitled to one vote for each share held. Holders of
Common Stock are not entitled to cumulative voting rights and, therefore,
holders of a plurality of shares voting in the election of directors may elect
the entire class of the Board of Directors standing for election at a
shareholders' meeting at which a quorum is present. In that event, holders of
the remaining shares of Common Stock would not be able to elect any director to
the Board of Directors. The Company's Charter requires that the Board of
Directors be staggered, consisting of three classes of directors which are as
nearly equal in number as possible.
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Liquidation and Dissolution
Except as otherwise provided by the designation of the preferences,
limitations and relative rights of any series of Preferred Stock, in the event
of any liquidation, dissolution, or winding up of the Company, whether voluntary
or involuntary, after payment has been made to holders of each series of
Preferred Stock of the full amount to which they are entitled, holders of shares
of Common Stock will be entitled to share, ratably according to the number of
shares of Common Stock held by them, in all remaining assets available for
distribution to holders of the Common Stock.
Certain Provisions of Delaware Law, the Charter and the By-laws
The Company is subject to the provisions of the General Corporate Law
of Delaware. Section 203 of the General Corporate Law of Delaware prohibits a
publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless the
business combinations is approved in a prescribed manner. A "business
combination" includes mergers, assets sales, and other transactions resulting in
a financial benefit to the interested stockholder. Subject to certain
exceptions, an "interested stockholder" is a person who, together with
affiliates owns, or within three years did own, 15% or more of the corporation's
voting stock.
As permitted by the General Corporation Law of Delaware, the Company's
Charter provides that Directors of the Company will not be personally liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except in certain circumstances involving wrongful acts,
such as the breach of a directors duty of loyalty or acts or omissions which
involve intentional misconduct or a knowing violation of law. The Company's
Charter and By-laws also contain provisions requiring the Company to indemnify
the Company Directors and officers to the fullest extent permitted by the
General Corporate Law of Delaware. In addition, the Company has entered into
indemnification agreements with each of its Directors and executive officers.
These agreements provide rights of indemnification substantially similar to and
in certain respects broader than those provided by the Charter and By-laws.
The Certificate and the By-laws provide that the Board of Directors be
divided into three classes of Directors as nearly equal in size as possible,
with staggered three year terms. The Charter provides that vacancies on the
Board may only be filled by a majority of the Board then in office and further
provides that Directors may only be removed by the affirmative vote of holders
of at least 80% of the voting power of all the then outstanding shares of stock
entitled to vote generally in the election of Directors.
The Charter provides that stockholder action can only be taken at an
annual or special meeting of stockholders and that the business permitted to be
conducted at any meeting of stockholders is limited to the business brought
before the meeting by the Chairman of the Board or the President of the Company
or at the request of a majority of the members of the Board. The Charter and
By-laws provide that special meetings of stockholders can be called only by the
Chairman of the Board of the Company or pursuant to a resolution approved by a
majority of the total number of Directors which the Company would have if there
were no vacancies on the Board. Stockholders are not permitted to call a special
meeting or to require that the Board call a special meeting of stockholders.
The Charter prohibits the Company, with certain exceptions, from
purchasing any shares of the Company's stock from any person, entity or group
that beneficially owns 5% or more of the Company's voting stock at an
above-market price, unless a majority of the Company's disinterested
stockholders approve the transaction. In addition, the Charter empowers the
Board, when considering a tender offer or merger or acquisition proposal, to
take into account factors in addition to potential economic benefits to
stockholders and to consider constituencies other than stockholders.
The General Corporation Law of Delaware provides generally that the
vote of a majority of shares entitled to vote is required to act on most matters
and to amend a corporation's certificate of incorporation. The Certificate and
the By-laws contain provisions requiring the affirmative vote of the holders of
at least 80% of the voting stock,
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voting together as a single class, to amend certain provisions of the Charter
and the By-laws, including certain of the foregoing provisions. Such a
supermajority vote would be in addition to any separate class vote that might in
the future be required with respect to shares of Preferred Stock then
outstanding.
The foregoing and other provisions of Delaware law and the Company's
Charter and By-laws could make more difficult the acquisition of the Company by
means of a tender offer, a proxy contest or otherwise. These provisions may have
the effect of delaying, deferring or preventing a change in control of the
Company, may discourage bids for the Common Stock at a premium over the market
price of the Common Stock and may adversely affect the market price of the
Common Stock.
Transfer Agent
The transfer agent and registrar for the Common Stock is Boston
Equiserve.
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth
certain general terms and provisions of the Warrants to which any Prospectus
Supplement may relate. Particular terms of the Warrants offered by any
Prospectus Supplement and the extent, if any, to which such general provisions
may apply to the Warrants so offered will be described in the Prospectus
Supplement relating to such Warrants. This description does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
provisions of the Warrant Agreement relating to each series of Warrants, which
will be in the form filed or incorporated by reference in the Registration
Statement at or prior to the time of the issuance of such series of Warrants.
General
The Company may issue Warrants to purchase Debt Securities, Preferred
Stock, Depositary Shares, Common Stock or any combination thereof (collectively,
the "Underlying Warrant Securities"). Such Warrants may be issued independently
or together with any such series of Underlying Warrant Securities and may be
attached or separate from such Underlying Warrant Securities. Each series of
Warrants will be issued under a separate warrant agreement (each, a "Warrant
Agreement") to be entered into between the Company and a warrant agent ("Warrant
Agent"). The Warrant Agent will act solely as an agent of the Company in
connection with the Warrants of such series and will not assume any obligation
or relationship of agency for or with holders or beneficial owners of Warrants.
An applicable Prospectus Supplement will describe the terms of any
series of Warrants in respect of which this Prospectus is being delivered,
including the following: (i) the title of such Warrants; (ii) the aggregate
number of such Warrants; (iii) the price or prices at which such Warrants will
be issued; (iv) the currency or currencies, including composite currencies, in
which the price of such Warrants may be payable; (v) the designation and terms
of the Underlying Warrant Securities purchasable upon exercise of such Warrants
and the number of such Underlying Warrant Securities issuable upon exercise of
such Warrants; (vi) the price at which and the currency or currencies, including
composite currencies, in which the Underlying Warrant Securities purchasable
upon exercise of such Warrants may be purchased; (vii) the date on which the
right to exercise such Warrants shall commence and the date on which such right
will expire; (viii) whether such Warrants will be issued in registered form or
bearer form; (ix) if applicable, the minimum or maximum amount of such Warrants
which may be exercised at any one time; (x) if applicable, the designation and
terms of the Underlying Warrant Securities with which such Warrants are issued
and the number of such Warrants issued with each such Underlying Warrant
Security; (xi) if applicable, the date on and after which such Warrants and the
related Underlying Warrant Securities will be separately transferable; (xii)
information with respect to book-entry procedures, if any; (xiii) if applicable,
a discussion of certain U.S. federal income tax considerations; and (xiv) any
other terms of such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
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Amendments and Supplements to Warrant Agreement
The Warrant Agreement for a series of Warrants may be amended or
supplemented without the consent of the holders of the Warrants issued
thereunder to effect changes that are not inconsistent with the provisions of
the Warrants and that do not adversely affect the interests of the holders of
the Warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The following description of the terms of the Stock Purchase Contracts
and Stock Purchase Units sets forth certain general terms and provisions of the
Stock Purchase Contracts and/or Stock Purchase Units to which any Prospectus
Supplement may relate. Particular terms of the Stock Purchase Contracts and/or
Stock Purchase Units offered by any Prospectus Supplement and the extent, if
any, to which such general provisions may apply to the Stock Purchase Contracts
and/or Stock Purchase Units so offered will be described in the Prospectus
Supplement relating to such Stock Purchase Contracts and/or Stock Purchase
Units.
The Company may issue Stock Purchase Contracts, including contracts
obligating holders to purchase from the Company, and the Company to sell to
holders, a specified number of shares of Common Stock, Preferred Stock or
Depositary Shares at a future date. The consideration per share of Common Stock,
Preferred Stock or Depositary Shares may be fixed at the time that the Stock
Purchase Contracts are issued or may be determined by reference to a specific
formula set forth in the Stock Purchase Contracts. Any such formula may include
anti-dilution provisions to adjust the number of shares issuable pursuant to
such Stock Purchase Contract upon the occurrence of certain events. The Stock
Purchase Contracts may be issued separately or as a part of units ("Stock
Purchase Units"), consisting of a Stock Purchase Contract and Debt Securities,
Trust Preferred Securities or debt obligations of third parties, including U.S.
Treasury securities, in each case securing holders' obligations to purchase
Common Stock, Preferred Stock or Depositary Shares under the Stock Purchase
Contracts. The Stock Purchase Contracts may require the Company to make periodic
payments to holders of the Stock Purchase Units, or vice versa, and such
payments may be unsecured or prefunded. The Stock Purchase Contracts may require
holders to secure their obligations thereunder in a specified manner.
Each applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units. The description in the
Prospectus Supplement will not purport to be complete and will be qualified in
its entirety by reference to the Stock Purchase Contracts, and, if applicable,
collateral arrangements and depositary arrangements, relating to such Stock
Purchase Contracts or Stock Purchase Units.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The following description of the terms of the Trust Preferred
Securities sets forth certain general terms and provisions of the Trust
Preferred Securities to which any Prospectus Supplement may relate. Particular
terms of the Trust Preferred Securities offered by any Prospectus Supplement and
the extent, if any, to which such general terms and provisions may apply to the
Trust Preferred Securities so offered will be described in the Prospectus
Supplement relating to such Trust Preferred Securities.
Each Trust may issue, from time to time, one or more series of
Trust Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration authorizes the Regular Trustees of each Trust
to issue one or more series of Trust Preferred Securities on behalf of the
respective Trust. Each Declaration will be qualified as an indenture under the
Trust Indenture Act. The Institutional Trustee for each Trust, an independent
trustee, will act as indenture trustee for the Trust Preferred Securities to be
issued by such Trust for purposes of compliance with the Trust Indenture Act.
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The Trust Preferred Securities will have such terms, including
with respect to distributions, redemption, voting, liquidation rights and such
other preferred, deferred or other special rights or such restrictions as shall
established by the Regular Trustees of the applicable Trust in accordance with
the Declaration of such Trust or as shall be set forth in such Declaration or
made part of such Declaration by the Trust Indenture Act.
Reference is made to the Prospectus Supplement relating to the
Trust Preferred Securities of the applicable Trust for specific terms of such
Trust Preferred Securities, including (i) the distinctive designation of such
Trust Preferred Securities; (ii) the aggregate number of Trust Preferred
Securities to be issued by such Trust; (iii) the annual distribution rate (or
method of determining such rate) for such Trust Preferred Securities and the
date or dates upon which such distributions will be payable; provided, however,
that distributions on the Trust Preferred Securities shall, subject to any
deferral provisions, and any provisions for payment of defaulted distributions,
be payable on a periodic basis to holders of Trust Preferred Securities as of a
record date in each period during which Trust Preferred Securities are
outstanding; (iv) any right of such Trust to defer periodic distributions on
such Trust Preferred Securities as a result of any interest deferral right
exercised by the Company on the Subordinated Debt Securities held by such Trust;
(v) whether distributions on such Trust Preferred Securities will be cumulative,
and, in the case of Trust Preferred Securities having such cumulative
distribution rights, the date or dates or the method of determining the date or
dates from which distributions on such Trust Preferred Securities will be
cumulative; (vi) the amount or amounts which will be paid out of the assets of
such Trust to holders of Trust Preferred Securities upon voluntary or
involuntary dissolution, winding-up or termination of such Trust; (vii) the
obligation or option, if any, of such Trust to purchase or redeem Trust
Preferred Securities and the price or prices at which, the period or periods
within which, and the terms and conditions upon which, such Trust Preferred
Securities will be purchased or redeemed, in whole or in part, pursuant to such
obligation or option; (viii) the voting rights, if any, of such Trust Preferred
Securities in addition to those required by law, including the number of votes
per Trust Preferred Security and any requirement for the approval by holders of
such Trust Preferred Securities as a condition to specified action or amendments
to the applicable Declaration; (ix) the terms and conditions, if any, upon which
the Subordinated Debt Securities may be distributed to holders of Trust
Preferred Securities; (x) if applicable, any securities exchange upon which such
Trust Preferred Securities shall be listed; (xi) whether such Trust Preferred
Securities are convertible or exchangeable, and if so, the securities or rights
into which such Trust Preferred Securities are convertible or exchangeable, and
the terms and conditions upon which such conversions or exchanges will be
effected; (xii) the method by which amounts payable in respect of such Trust
Preferred Securities may be calculated and any commodities, currencies, currency
units or composite currencies, or indices, or value, rate or price, relevant to
such calculation; and (xiii) any other relevant rights, preferences, privileges,
limitations or restrictions of such Trust Preferred Securities not inconsistent
with the applicable Declaration or with applicable law.
All Trust Preferred Securities offered will be guaranteed by
the Company to the extent set forth below under "Description of Trust
Guarantee." The Trust Guarantees of the Company, when taken together with the
Company's obligations under the Subordinated Debt Securities and the relevant
supplemental indenture, and its obligations under each Declaration, including
the Company's obligations to pay costs, expenses, debts and liabilities of each
Trust (other than with respect to the Trust Securities), will provide a full and
unconditional guarantee, on a subordinated basis, of amounts due on the Trust
Preferred Securities. The payment terms of the Trust Preferred Securities issued
by a Trust will be the same as the Subordinated Debt Securities issued to such
Trust by the Company. The Prospectus Supplement relating to any offering of
Trust Preferred Securities will describe certain U.S. federal income tax
considerations applicable thereto.
Trust Common Securities
In connection with the issuance of Trust Preferred Securities,
a Trust will issue Trust Common Securities. Each Declaration authorizes the
Regular Trustees to issue on behalf of a Trust one or more series of Trust
Common Securities having such terms, including with respect to distributions,
redemption, voting, liquidation rights or other restrictions as shall be
established by such Regular Trustees in accordance with such Declaration or as
shall otherwise be set forth therein. The terms of Trust Common Securities of a
Trust will be substantially identical to the terms of the related Trust
Preferred Securities of such Trust, and such Trust Common Securities will rank
pari passu, and payments will be made thereon pro rata, with such Trust
Preferred Securities except that, upon an event of default
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under its Declaration, the rights of holders of such Trust Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of holders of such Trust
Preferred Securities. Except in certain limited circumstances, Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Capital Trustees of the applicable Trust. The Company will own directly
or indirectly all of the Trust Common Securities of each of the Trusts.
DESCRIPTION OF TRUST GUARANTEE
The following description of the terms of the Trust Guarantees which
will be executed and delivered by the Company for the benefit of holders from
time to time of Trust Preferred Securities sets forth certain general terms and
provisions of the Trust Guarantees to which any Prospectus Supplement may
relate. This description does not purport to be complete and is subject to, and
qualified in its entirety by reference to all of the provisions in each Trust
Guarantee, which will be in the form filed with or incorporated by reference in
the Registration Statement of which this Prospectus is a part at or prior to the
time of issuance of Trust Preferred Securities, and those made part of the Trust
Guarantee by the Trust Indenture Act, as in effect on the date of such Trust
Guarantee, and to such Trust Preferred Securities.
General
Each Trust Guarantee will be qualified as an indenture under the Trust
Indenture Act. Chase Manhattan Bank, an independent trustee, will act as
indenture trustee under each Trust Guarantee (the "Guarantee Trustee") for the
purposes of compliance with the provisions of the Trust Indenture Act. Pursuant
to each Trust Guarantee, unless otherwise specified in the applicable Prospectus
Supplement, the Company will agree, to the extent set forth therein, to pay in
full, on a subordinated basis, to holders of Trust Preferred Securities, the
Trust Guarantee Payments (as defined herein) (except to the extent paid by the
applicable Trust), as and when due, regardless of any defense, right of set-off
or counterclaim which such Trust may have or assert. The following payments or
distributions with respect to Trust Preferred Securities, to the extent not paid
by or on behalf of the applicable Trust (the "Guarantee Payments"), will be
subject to a Trust Guarantee (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on Trust Preferred Securities, to
the extent the applicable Trust has funds available therefor; (ii) with respect
to any Trust Preferred Securities called for redemption by a Trust, the
redemption price (the "Redemption Price") and all accrued and unpaid
distributions to the date of redemption, to the extent such Trust has funds
available therefor and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of a Trust (other than in connection with the
distribution of Subordinated Debt Securities to holders of Trust Preferred
Securities or the redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Trust Preferred Securities to the date of payment, to the
extent such Trust has funds available therefor, and (b) the amount of assets of
such Trust remaining available for distribution to holders of Trust Preferred
Securities in liquidation of such Trust. The Company's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Company to holders of Trust Preferred Securities or by causing the
applicable Trust to pay such amounts to such holders.
The Trust Guarantees will not apply to any payment of distributions
except to the extent a Trust has funds available therefor. If the Company does
not make interest or principal payments on the Subordinated Debt Securities
purchased by a Trust, such Trust will not have funds available for, and will not
pay, distributions on Trust Preferred Securities.
The Company has also agreed separately to guarantee the obligations of
each Trust with respect to Trust Common Securities (the "Common Securities
Guarantee") to the same extent as a Trust Guarantee, except that upon an Event
of Default under a Declaration, holders of Trust Preferred Securities shall have
priority over holders of Trust Common Securities with respect to distributions
and payments on liquidation, redemption or otherwise.
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Certain Covenants of the Company
Unless otherwise specified in the applicable Prospectus Supplement, in
the applicable Trust Guarantee, the Company will covenant that, so long as any
applicable Trust Preferred Securities remain outstanding, if there shall have
occurred any event that would constitute an event of default under such Trust
Guarantee or Declaration, then (a) the Company will not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of capital stock of the Company in
satisfaction of the Company's obligations under any employee benefit plans,
systematic stock repurchase program, or in satisfaction of its obligations
pursuant to any contract or security outstanding on the date of such event
requiring the Company to purchase its capital stock, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being so converted or
exchanged, (iv) dividends or distributions in capital stock of the Company (or
rights to acquire capital stock) or repurchases or redemptions of capital stock
solely from the issuance or exchange of capital stock, and (v) redemptions or
repurchases of any rights outstanding under a shareholder rights plan), (b) the
Company will not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any of its debt securities which rank junior to
the Subordinated Debt Securities and (c) the Company will not make any guarantee
payments with respect to the foregoing (other than payments pursuant to a Trust
Guarantee or a Common Securities Guarantee).
Modification of the Trust Guarantee; Assignment
Except with respect to any changes that do not adversely affect the
rights of holders of Trust Preferred Securities (in which case no consent will
be required), a Trust Guarantee may be amended only with the prior approval of
holders of not less than a majority in liquidation amount of the outstanding
Trust Preferred Securities issued by the applicable Trust. The manner of
obtaining any such approval of holders of the Trust Preferred Securities will be
set forth in the accompanying Prospectus Supplement. All guarantees and
agreements contained in the Trust Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of holders of the applicable Trust Preferred Securities then
outstanding.
Termination
A Trust Guarantee will terminate (a) upon full payment of the
Redemption Price of all applicable Trust Preferred Securities then outstanding,
(b) upon distribution of the Subordinated Debt Securities held by such Trust to
the applicable holders of Trust Preferred Securities or (c) upon full payment of
the amounts payable in accordance with the Declaration upon liquidation of a
Trust. A Trust Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Trust Preferred Securities must
restore payment of any sums paid to it under Trust Preferred Securities or a
Trust Guarantee.
Events of Default
An event of default under a Trust Guarantee will occur upon the failure
of the Company to perform any of its payment or other obligations thereunder.
Holders of a majority in liquidation amount of the Trust Preferred
Securities issued by a Trust will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Guarantee Trustee or to direct the exercise of any trust or power conferred upon
such Guarantee Trustee. If a Guarantee Trustee fails to enforce a Trust
Guarantee, any record holder of Trust Preferred Securities may institute a legal
proceeding directly against the Company to enforce such holder's rights under
such Trust Guarantee without first instituting a legal proceeding against the
applicable Trust, such Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Company has failed to make a payment
required under a Trust Guarantee, a record holder of Trust Preferred Securities
may directly institute a proceeding against the Company for enforcement
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of such Trust Guarantee for such payment to the record holder of Trust Preferred
Securities of the principal of or interest on the applicable Debt Securities on
or after the respective due dates specified in the Debt Securities, and the
amount of the payment will be based on the holder's pro rata share of the amount
due and owing on all Trust Preferred Securities issued by the applicable Trust.
The Company waives any right or remedy to require that any action be brought
first against each Trust or any other person or entity before proceeding
directly against the Company.
Status of the Trust Guarantees
Each of the Trust Guarantees will constitute an unsecured obligation of
the Company and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Company, except those liabilities of the Company made
pari passu or subordinate by their terms; (ii) pari passu with most senior
preferred or preference stock now or hereafter issued by the Company and with
any guarantee now or hereafter entered by the Company in respect of any
preferred or preference stock of any affiliate of the Company; and (iii) senior
to the Common Stock of the Company. The terms of the Trust Preferred Securities
provide that each holder of Trust Preferred Securities, by acceptance thereof,
agrees to the subordination provisions and other terms of the Trust Guarantee
relating thereto.
Each Trust Guarantee will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under the guarantee without
instituting a legal proceeding against any other person or entity).
Information Concerning the Guarantee Trustee
The Guarantee Trustee, prior to the occurrence of a default with
respect to a Trust Guarantee, undertakes to perform only such duties as are
specifically set forth in the applicable Trust Guarantee and, after default,
will exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provisions, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by a
Trust Guarantee at the request of any holder of Trust Preferred Securities,
unless offered reasonable indemnity against the costs, expenses and liabilities
which might be incurred thereby. The foregoing will not relieve the Guarantee
Trustee, upon the occurrence of an event of default under a Trust Guarantee,
from exercising the rights and powers vested in it by such Trust Guarantee.
Applicable Law
The Trust Guarantees will be governed by and construed in accordance
with the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell the Securities and the Trusts may sell the Trust
Preferred Securities being offered hereby may be sold in any one or more of the
following ways from time to time: (i) through agents; (ii) to or through
underwriters; (iii) through dealers; and/or (iv) directly by the Company or, in
the case of Trust Preferred Securities, by the Trusts, to purchasers.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited directly by the Company
or the Trusts or by agents designated by the Company or the Trusts from time to
time. Any such agent involved in the offer or sale of the Securities in respect
of which this Prospectus is delivered will be named, and any commissions payable
by the Company or by any Trust to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its
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appointment (ordinarily five business days or less). Any such agent may be
deemed to be an underwriter, as that term is defined in the Securities Act, of
the Securities so offered and sold.
If Securities are sold by means of an underwritten offering, the
Company and, in the case of an offering of Trust Preferred Securities, the
applicable Trust, will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, the respective amounts underwritten and the terms of the
transaction, including commissions, discounts and any other compensation of the
underwriters and dealers, if any, will be set forth in the applicable Prospectus
Supplement which will be used by the underwriters to make resales of the
Securities in respect of which this Prospectus is being delivered to the public.
If underwriters are utilized in the sale of any Securities in respect of which
this Prospectus is being delivered, such Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by one or more underwriters. If
any underwriter or underwriters are utilized in the sale of Securities, unless
otherwise indicated in the applicable Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
such Securities will be obligated to purchase all such Securities if any are
purchased.
The Company or any of the Trusts, as applicable, may grant to the
underwriters options to purchase additional Securities, to cover
over-allotments, if any, at the initial public offering price (with additional
underwriting commissions or discounts), as may be set forth in the Prospectus
Supplement relating thereto. If the Company or any such Trust, as applicable,
grants any over-allotment option, the terms of such over-allotment option will
be set forth in the Prospectus Supplement for such Securities.
If a dealer is utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company or any of the Trusts, as
applicable, will sell such Securities to the dealer, as principal. The dealer
may then resell such Securities to the public at varying prices to be determined
by such dealer at the time of resale. Any such dealer may be deemed to be an
underwriter, as such term is defined in the Securities Act, of the Securities so
offered and sold. The name of the dealer and the terms of the transaction will
be set forth in the Prospectus Supplement relating thereto.
Offers to purchase Securities may be solicited directly by the Company
or any of the Trusts, as applicable, and the sale thereof may be made by the
Company or any of the Trusts directly to institutional investors or others, who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
Securities may also be offered and sold, if so indicated in the
applicable Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company or any of the Trusts, as
applicable. Any remarketing firm will be identified and the terms of its
agreement, if any, with the Company or any such Trust and its compensation will
be described in the applicable Prospectus Supplement. Remarketing firms may be
deemed to be underwriters, as that term is defined in the Securities Act, in
connection with the Securities remarketed thereby.
If so indicated in the applicable Prospectus Supplement, the Company or
any of the Trusts, as applicable, may authorize agents and underwriters to
solicit offers by certain institutions to purchase Securities from the Company
or any such Trust at the public offering price set forth in the applicable
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on the date or dates stated in the applicable Prospectus
Supplement. Such delayed delivery contracts will be subject only to those
conditions set forth in the applicable Prospectus Supplement. A commission
indicated in the applicable Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to delayed delivery
contracts accepted by the Company or any of the Trusts, as applicable.
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Agents, underwriters, dealers and remarketing firms may be entitled
under relevant agreements with the Company or any of the Trusts, as applicable,
to indemnification by the Company or any such Trust against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, underwriters, dealers and remarketing firms may
be required to make in respect thereof.
Each series of Securities will be a new issue and, other than the
Common Stock, which is listed on the New York Stock Exchange, will have no
established trading market. The Company may elect to list any series of
Securities on an exchange, and in the case of the Common Stock, on any
additional exchange, but, unless otherwise specified in the applicable
Prospectus Supplement, the Company shall not be obligated to do so. No assurance
can be given as to the liquidity of the trading market for any of the
Securities.
Agents, underwriters, dealers and remarketing firms may, engage in
transactions with, or perform services for, the Company and its subsidiaries in
the ordinary course of business.
The place and time of delivery for Securities will be set forth in the
accompanying Prospectus Supplement for such Securities.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company, BSC
Capital Trust, BSC Capital Trust II and BSC Capital Trust III, as the case may
be, by Shearman & Sterling, New York, New York. Certain matters of Delaware Law
relating to the validity of the Trust Preferred Securities will be passed upon
for the Company and the Trusts by Prickett, Jones, Elliott, Kristol & Schnee,
special counsel to the Company, BSC Capital Trust, BSC Capital Trust II and BSC
Capital Trust III. If the Securities are being distributed in an underwritten
offering, the validity of the Securities will be passed upon for the
underwriters by counsel identified in the related Prospectus Supplement.
EXPERTS
The consolidated financial statements and financial statement schedule
of the Company incorporated by reference and included, respectively, in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1998, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon incorporated by reference and included therein and incorporated
herein by reference. Such consolidated financial statements and financial
statement schedule have been incorporated herein by reference in reliance upon
such reports, given upon the authority of such firm as experts in accounting and
auditing.
The combined balance sheets of Schneider Worldwide, formerly a business
of Pfizer Inc., as of December 31, 1997 and 1996, and the related combined
statements of income and cash flows for each of the years in the three-year
period ended December 31, 1997, are incorporated by reference herein in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein and in the registration statement, and
upon the authority of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The aggregate estimated expenses, other than underwriting discounts and
commissions, in connection with the offering pursuant to this Registration
Statement are currently anticipated to be as follows (all amounts except for the
Securities and Exchange Commission filing fee are estimated). All expenses of
the offering will be paid by Boston Scientific Corporation.
Amount
------
Securities and Exchange
Commission registration fee..................... $354,000
Blue Sky fees and expenses......................... 20,000
Printing and engraving expenses.................... 100,000
Legal fees and expenses (other than
Blue Sky fees and expenses)..................... 125,000
Accounting fees and expenses....................... 100,000
Miscellaneous (including any applicable listing
fees, and Trustees', Rating Agency
and Transfer Agent's fees and expenses)......... 200,000
--------
Total........................................... $899,000
========
Item 15. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware contains, in
Section 145, provisions relating to the indemnification of officers and
directors. Article VI of the Restated By-laws of the Company contains provisions
requiring indemnification by the Company of its directors and officers to the
full extent permitted by law. These provisions extend to expenses reasonably
incurred by directors or officers in defense or settlement of any such action or
proceeding.
The board of directors of the Company has general authority to
indemnify any officer or director against losses arising out of his or her
service as such, unless prohibited by law. The Company carries insurance to
cover potential costs of the foregoing indemnification of the Company's officers
and directors.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
Item 16. Exhibits.
***1.1 Form of Debt Securities Underwriting Agreement.
***1.2 Form of Equity Securities Underwriting Agreement.
***1.3 Form of Depositary Shares Underwriting Agreement.
***1.4 Form of BSC Capital Trust Preferred Securities Underwriting
Agreement.
+4.1 Specimen Certificate for shares of the Company's Common Stock
(Exhibit 4.1, Registration No. 33-46980).
+4.2 Second Restated Certificate of Incorporation of the Company
(Exhibit 3.1, Annual Report on Form 10-K for the year ended
December 31, 1993, File No. 1-11083); Certificate of Amendment
of Second Restated Certificate of Incorporation of the Company
(Exhibit 3.2, Annual Report on Form 10-K for the year ended
December 31, 1995, File No. 1-11083); Certificate of Second
II-1
<PAGE>
Amendment of Second Restated Certificate of Incorporation of
the Company (Exhibit 3.3, Annual Report on Form 10-K for the
year ended December 31, 1998, File No. 1-11083); and Restated
By-laws of the Company (Exhibit 3.2, Registration
No. 33-46980).
***4.3 Form of Certificate of Designations of Preferred Stock.
**4.4 Form of Debt Securities Indenture.
***4.5 Form of Deposit Agreement with respect to the Depositary
Shares (including the terms of Depositary Receipts to be
issuable thereunder).
***4.6 Form of Stock Purchase Contract.
*4.7 Certificate of Trust of BSC Capital Trust.
**4.8 Declaration of Trust of BSC Capital Trust.
*4.9 Certificate of Trust of BSC Capital Trust II.
**4.10 Declaration of Trust of BSC Capital Trust II.
*4.11 Certificate of Trust of BSC Capital Trust III.
**4.12 Declaration of Trust of BSC Capital Trust III.
*4.13 Form of Trust Preferred Guarantee Agreement to be issued by
the Company (Agreement for BSC Capital Trust, BSC Capital
Trust II and BSC Capital Trust III are substantially identical
except for names and dates).
**4.14 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust.
**4.15 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust II.
**4.16 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust III.
***4.17 Form of Debt Securities
**5.1 Opinion of Shearman & Sterling as to legality of the
Securities.
**5.2 Opinion of Delaware counsel as to the legality of the Trust
Preferred Securities.
**12.1 Statement of computation of ratios of earnings to fixed
charges of the Company.
**23.1 Consent of Ernst & Young LLP, independent auditors.
**23.2 Consent of Shearman & Sterling (included in Exhibit 5.1).
**23.3 Consent of Delaware counsel (included in Exhibit 5.2).
**23.4 Consent of KPMG LLP, independent certified public accountants.
*24.1 Powers of Attorney.
*25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Debt Securities.
*25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust.
*25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust.
*25.4 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust II.
*25.5 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust II.
*25.6 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust III.
*25.7 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust III.
-----------------------
* Previously filed
** Filed herewith.
*** To be filed as an exhibit to a Current Report on Form 8-K to be filed
by the Company in connection with a specific offering pursuant to Item
601.
+ Incorporated by reference.
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement:
II-2
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) If the securities to be registered are to be offered at
competitive bidding, the undersigned registrants hereby undertake: (1)
to use their best efforts to distribute prior to the opening of bids,
to prospective bidders, underwriters and dealers, a reasonable number
of copies of a prospectus which at that time meets the requirements of
Section 10(a) of the Securities Act of 1933, and relating to the
securities offered at competitive bidding, as contained in the
registration Statement, together with any supplements thereto, and (2)
to file an amendment to the registration Statement reflecting the
results of bidding, the terms of the reoffering and related matters to
the extent required by the applicable form, not later than the first
use, authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at competitive bidding,
unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be
made.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants of
expenses incurred or paid by a director, officer or controlling person
of the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrants
will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
(e) The undersigned registrants hereby undertake that (1) for
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be
part of this Registration Statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under
the Securities Act of 1993, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-3
<PAGE>
(f) The undersigned registrants hereby undertake to file, if
necessary, an application for the purpose of determining the
eligibility of the Trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939, as amended, in accordance with the
rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Securities Act of 1933.
(g) The undersigned registrants hereby undertake to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause
to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim information.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Boston
Scientific Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Natick, Commonwealth of
Massachusetts, on the 6th day of April, 1999.
BOSTON SCIENTIFIC CORPORATION
By /s/ Lawrence C. Best
---------------------------------------------------
Lawrence C. Best
Senior Vice President--Finance and Administration
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below by the following
persons in the capacities indicated on the 6th day of April, 1999.
Name and Signature Title
------------------ -----
* Director, Founder Chairman
- ---------------------------------
John E. Abele
* Director
- ---------------------------------
Charles J. Aschauer, Jr.
* Director
- ---------------------------------
Randall F. Bellows
* Senior Vice President--Finance and
- --------------------------------- Administration and Chief Financial Officer
Lawrence C. Best (Principal Financial and Accounting Officer)
* Director
- ---------------------------------
Joseph A. Ciffolillo
* Director
- ---------------------------------
Joel L. Fleishman
* Director
- ---------------------------------
Lawrence L. Horsch
* Director
- ---------------------------------
N. J. Nicholas, Jr.
* Director, Founder and Chairman of the Board
- --------------------------------- (Principal Executive Officer)
Peter M. Nicholas
II-5
<PAGE>
* Director
- ---------------------------------
Dale A. Spencer
Director, President and Chief Executive
- --------------------------------- Officer
James R. Tobin
* Power of Attorney by:
/s/ Paul W. Sandman
- ---------------------------------
Paul W. Sandman
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BSC Capital
Trust II certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of Massachusetts,
on the 6th day of April, 1999.
BSC CAPITAL TRUST II
By: BOSTON SCIENTIFIC CORPORATION,
as Managing Member
By /s/ Lawrence C. Best
---------------------------------------------------
Lawrence C. Best
Senior Vice President--Finance and Administration
and Chief Financial Officer
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BSC Capital
Trust III certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of Massachusetts,
on the 6th day of April, 1999.
BSC CAPITAL TRUST III
By: BOSTON SCIENTIFIC CORPORATION,
as Managing Member
By /s/ Lawrence C. Best
---------------------------------------------------
Lawrence C. Best
Senior Vice President--Finance and Administration
and Chief Financial Officer
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BSC Capital
Trust certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of Massachusetts,
on the 6th day of April, 1999.
BSC CAPITAL TRUST
By: BOSTON SCIENTIFIC CORPORATION,
as Managing Member
By /s/ Lawrence C. Best
---------------------------------------------------
Lawrence C. Best
Senior Vice President--Finance and Administration
and Chief Financial Officer
II-9
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ------------- ----------------------
***1.1 Form of Debt Securities Underwriting Agreement.
***1.2 Form of Equity Securities Underwriting Agreement.
***1.3 Form of Depositary Shares Underwriting Agreement.
***1.4 Form of BSC Capital Trust Preferred Securities Underwriting
Agreement.
+4.1 Specimen Certificate for shares of the Company's Common Stock
(Exhibit 4.1, Registration No. 33-46980).
+4.2 Second Restated Certificate of Incorporation of the Company
(Exhibit 3.1, Annual Report on Form 10-K for the year ended
December 31, 1993, File No. 1-11083); Certificate of Amendment
of Second Restated Certificate of Incorporation of the Company
(Exhibit 3.2, Annual Report on Form 10-K for the year ended
December 31, 1995, File No. 1-11083); Certificate of Second
Amendment of Second Restated Certificate of Incorporation of
the Company (Exhibit 3.3, Annual Report on Form 10-K for the
year ended December 31, 1998, File No. 1-11083); and Restated
By-laws of the Company (Exhibit 3.2, Registration
No. 33-46980).
***4.3 Form of Certificate of Designations of Preferred Stock.
**4.4 Form of Debt Securities Indenture.
***4.5 Form of Deposit Agreement with respect to the Depositary
Shares (including the terms of Depositary Receipts to be
issuable thereunder).
***4.6 Form of Stock Purchase Contract.
*4.7 Certificate of Trust of BSC Capital Trust.
**4.8 Declaration of Trust of BSC Capital Trust.
*4.9 Certificate of Trust of BSC Capital Trust II.
**4.10 Declaration of Trust of BSC Capital Trust II.
*4.11 Certificate of Trust of BSC Capital Trust III.
**4.12 Declaration of Trust of BSC Capital Trust III.
*4.13 Form of Trust Preferred Guarantee Agreement to be issued by
the Company (Agreement for BSC Capital Trust, BSC Capital
Trust II and BSC Capital Trust III are substantially identical
except for names and dates).
**4.14 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust.
**4.15 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust II.
**4.16 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust III.
***4.17 Form of Debt Securities
<PAGE>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ------------- ----------------------
**5.1 Opinion of Shearman & Sterling as to legality of the
Securities.
**5.2 Opinion of Delaware counsel as to the legality of the Trust
Preferred Securities.
**12.1 Statement of computation of ratios of earnings to fixed
charges of the Company.
**23.1 Consent of Ernst & Young LLP, independent auditors.
**23.2 Consent of Shearman & Sterling (included in Exhibit 5.1).
**23.3 Consent of Delaware counsel (included in Exhibit 5.2).
**23.4 Consent of KPMG LLP, independent certified public accountants.
*24.1 Powers of Attorney.
*25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Debt Securities.
*25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust.
*25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust.
*25.4 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust II.
*25.5 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust II.
*25.6 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust III.
*25.7 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust III.
-----------------------
* Previously filed
** Filed herewith.
*** To be filed as an exhibit to a Current Report on Form 8-K to be filed
by the Company in connection with a specific offering pursuant to Item
601.
+ Incorporated by reference.
===============================================================================
BOSTON SCIENTIFIC CORPORATION
TO
THE CHASE MANHATTAN BANK
Trustee
-----------------
Indenture
Dated as of September |X|, 1998
-----------------
===============================================================================
<PAGE>
BOSTON SCIENTIFIC CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of September |X|, 1998
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) ................................ 607
(a)(2) ................................ 607
(b) ................................ 608
ss. 312(c) ................................ 701
ss. 314(a) ................................ 703
(a)(4) ................................ 1004
(c)(1) ................................ 102
(c)(2) ................................ 102
(e) ................................ 102
ss. 315(b) ................................ 601
ss. 316(a)(last
sentence) ................................ 101 ("Outstanding")
(a)(1)(A) ................................ 502, 512
(a)(1)(B) ................................ 513
(b) ................................ 508
(c) ................................ 104(e)
ss. 317(a)(1) ................................ 503
(a)(2) ................................ 504
(b) ................................ 1003
ss. 318(a) ................................ 111
- --------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................ 1
Act ............................................. 2
Additional Amounts............................... 2
Affiliate........................................ 2
Authenticating Agent............................. 2
Authorized Newspaper............................. 2
Bearer Security.................................. 3
Board of Directors............................... 3
Board Resolution................................. 3
Business Day..................................... 3
CEDEL S.A........................................ 3
Commission....................................... 3
Common Depositary................................ 3
Company.......................................... 3
Company Request" or "Company Order".............. 3
Consolidated Intangibles......................... 3
Consolidated Net Worth........................... 4
Conversion Date.................................. 4
Conversion Event................................. 4
Corporate Trust Office........................... 4
corporation...................................... 4
coupon........................................... 4
Currency......................................... 4
- --------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
ii
Page
Debt............................................. 5
Default.......................................... 5
Defaulted Interest................................ 5
Dollar" or "$..................................... 5
Dollar Equivalent of the Currency Unit............ 5
Dollar Equivalent of the Foreign Currency......... 5
ECU .............................................. 5
Election Date..................................... 5
Euroclear......................................... 5
European Union"................................... 5
European Monetary System.......................... 5
Event of Default.................................. 5
Exchange Date..................................... 5
Exchange Rate Agent............................... 5
Exchange Rate Officer's Certificate............... 6
Federal Bankruptcy Code........................... 6
Foreign Currency.................................. 6
Government Obligations............................ 6
Holder............................................ 6
Indenture......................................... 6
Indexed Security.................................. 7
interest.......................................... 7
Interest Payment Date............................. 7
Lien.............................................. 7
Market Exchange Rate.............................. 7
Maturity.......................................... 8
Officer's Certificate............................. 8
Opinion of Counsel................................ 8
Original Issue Discount Security.................. 8
Outstanding....................................... 8
Paying Agent...................................... 9
Person............................................ 9
Place of Payment.................................. 9
Predecessor Security.............................. 10
Principal Property................................ 10
Redemption Date................................... 10
Redemption Price.................................. 10
Registered Security............................... 10
Regular Record Date............................... 10
<PAGE>
iii
Page
Repayment Date.................................... 10
Repayment Price................................... 10
Responsible Officer............................... 11
Securities........................................ 11
Security Register" and "Security Registrar........ 11
Senior Indebtedness............................... 11
Special Record Date............................... 11
Stated Maturity................................... 11
Subsidiary........................................ 12
Trust Indenture Act" or "TIA...................... 12
Trustee........................................... 12
United States..................................... 12
United States person.............................. 12
Valuation Date.................................... 12
Vice President.................................... 12
Voting Stock...................................... 12
Yield to Maturity................................. 12
SECTION 102. Compliance Certificates and Opinions........................ 13
SECTION 103. Form of Documents Delivered to Trustee...................... 13
SECTION 104. Acts of Holders............................................. 14
SECTION 105. Notices, etc. to Trustee and Company........................ 16
SECTION 106. Notice to Holders; Waiver................................... 16
SECTION 107. Effect of Headings and Table of Contents.................... 17
SECTION 108. Successors and Assigns...................................... 18
SECTION 109. Separability Clause......................................... 18
SECTION 110. Benefits of Indenture....................................... 18
SECTION 111. Governing Law............................................... 18
SECTION 112. Legal Holidays.............................................. 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................. 19
SECTION 202. Form of Trustee's Certificate of Authentication............. 19
SECTION 203. Securities Issuable in Global Form.......................... 20
<PAGE>
iv
Page
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................ 21
SECTION 302. Denominations............................................... 25
SECTION 303. Execution, Authentication, Delivery and Dating.............. 25
SECTION 304. Temporary Securities........................................ 28
SECTION 305. Registration, Registration of Transfer and Exchange......... 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............ 34
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset............................................. 35
SECTION 308. Optional Extension of Stated Maturity....................... 38
SECTION 309. Persons Deemed Owners....................................... 39
SECTION 310. Cancellation................................................ 39
SECTION 311. Computation of Interest..................................... 40
SECTION 312. Currency and Manner of Payments in Respect of Securities.... 40
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent 44
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................... 44
SECTION 402. Application of Trust Money.................................. 46
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default........................................... 46
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......... 48
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................... 49
SECTION 504. Trustee May File Proofs of Claim............................ 50
SECTION 505. Trustee May Enforce Claims Without Possession of Securities. 51
SECTION 506. Application of Money Collected.............................. 51
SECTION 507. Limitation on Suits......................................... 51
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 52
SECTION 509. Restoration of Rights and Remedies.......................... 53
<PAGE>
v
Page
SECTION 510. Rights and Remedies Cumulative............................. 53
SECTION 511. Delay or Omission Not Waiver............................... 53
SECTION 512. Control by Holders......................................... 53
SECTION 513. Waiver of Past Defaults.................................... 54
SECTION 514. Waiver of Stay or Extension Laws........................... 54
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults......................................... 55
SECTION 602. Certain Rights of Trustee.................................. 55
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities................................................ 57
SECTION 604. May Hold Securities........................................ 57
SECTION 605. Money Held in Trust........................................ 57
SECTION 606. Compensation and Reimbursement............................. 58
SECTION 607. Corporate Trustee Required; Eligibility.................... 59
SECTION 608. Resignation and Removal; Appointment of Successor.......... 59
SECTION 609. Acceptance of Appointment by Successor..................... 61
SECTION 610. Merger, Conversion, Consolidation or Succession to Business 62
SECTION 611. Appointment of Authenticating Agent........................ 62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders............... 64
SECTION 702. Reports by Trustee......................................... 64
SECTION 703. Reports by Company......................................... 65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms....... 65
SECTION 802. Successor Person Substituted............................... 66
<PAGE>
vi
Page
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders......... 67
SECTION 902. Supplemental Indentures with Consent of Holders............ 68
SECTION 903. Execution of Supplemental Indentures....................... 69
SECTION 904. Effect of Supplemental Indentures.......................... 70
SECTION 905. Conformity with Trust Indenture Act........................ 70
SECTION 906. Reference in Securities to Supplemental Indentures......... 70
SECTION 907. Notice of Supplemental Indentures.......................... 70
SECTION 908. Effect on Senior Indebtedness.............................. 70
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest....... 71
SECTION 1002. Maintenance of Office or Agency........................... 71
SECTION 1003. Money for Securities Payments to Be Held in Trust......... 73
SECTION 1004. Statement as to Compliance................................ 74
SECTION 1005. Additional Amounts........................................ 74
SECTION 1006. Payment of Taxes and Other Claims......................... 76
SECTION 1007. Maintenance of Principal Properties....................... 76
SECTION 1008. Corporate Existence....................................... 76
SECTION 1009. Limitation on Liens....................................... 77
SECTION 1010. Waiver of Certain Covenants............................... 78
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................. 78
SECTION 1102. Election to Redeem; Notice to Trustee..................... 79
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......... 79
SECTION 1104. Notice of Redemption...................................... 79
SECTION 1105. Deposit of Redemption Price............................... 81
SECTION 1106. Securities Payable on Redemption Date..................... 81
SECTION 1107. Securities Redeemed in Part............................... 82
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................. 82
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..... 83
SECTION 1203. Redemption of Securities for Sinking Fund................. 83
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.................................. 84
SECTION 1302. Repayment of Securities................................... 85
SECTION 1303. Exercise of Option........................................ 85
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.................................................. 86
SECTION 1305. Securities Repaid in Part................................. 87
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance............................................... 87
SECTION 1402. Defeasance and Discharge.................................. 87
SECTION 1403. Covenant Defeasance....................................... 88
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........... 88
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions................. 90
SECTION 1406. Reinstatement............................................. 91
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called................. 92
SECTION 1502. Call, Notice and Place of Meetings........................ 92
SECTION 1503. Persons Entitled to Vote at Meetings...................... 92
SECTION 1504. Quorum; Action............................................ 93
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SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.................................. 94
SECTION 1506. Counting Votes and Recording Action of Meetings........... 95
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate.................................. 95
SECTION 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities................................ 96
SECTION 1603. No Payment on Securities in Event of Default on Senior
Indebtedness............................................. 98
SECTION 1604. Payments on Securities Permitted.......................... 98
SECTION 1605. Authorization of Holders to Trustee to Effect
Subordination............................................ 98
SECTION 1606. Notices to Trustee........................................ 98
SECTION 1607. Trustee as Holder of Senior Indebtedness.................. 99
SECTION 1608. Modifications of Terms of Senior Indebtedness............. 99
SECTION 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent.................................................... 99
TESTIMONIUM..............................................................100
SIGNATURES AND SEALS.....................................................100
EXHIBIT A FORMS OF CERTIFICATION
<PAGE>
1
INDENTURE dated as of September |X|, 1998, between BOSTON
SCIENTIFIC CORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at One Boston Scientific Place, Natick, Massachusetts 01760-1537, and
THE CHASE MANHATTAN BANK, a New York banking corporation, Trustee (herein
called the "Trustee").
NEED TO CONFORM BOOK-ENTRY TO RS
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
and senior or subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), which may be convertible into or exchangeable
for any securities of any person (including the Company), to be issued in one or
more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and
<PAGE>
2
the terms "cash transaction" and "self-liquidating paper", as used in
TIA Section 311, shall have the meanings assigned to them in the rules
of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) 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.
Certain terms, used principally in Article Three, are defined
in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" has the meaning specified in Section
1005.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security except a Registered
Security.
<PAGE>
3
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
"CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution 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 at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman, its President, any
Vice President or its Treasurer, and delivered to the Trustee.
"Consolidated Intangibles" means at any time, all amounts
included in the Consolidated Net Worth of the Company at such time which, in
accordance with GAAP, would be classified as intangible assets, net of
accumulated amortization, on a consolidated balance sheet of the Company and its
Subsidiaries, including, without limitation, (a) goodwill, net of accumulated
amortization, (other than negative goodwill), including any amounts (however
designated on the balance sheet) representing the cost of acquisitions or
investments in excess of the sum of (i) underlying net tangible assets and (ii)
purchased research and development to the extent such costs will be expensed
within 12 months of such acquisition or investment, or within 12 months from the
time identification of such costs is required, and (b) patents, trademarks,
copyrights and other intangibles, net of accumulated amortization.
<PAGE>
4
"Consolidated Net Worth" means at any time, all amounts which
would, in accordance with GAAP, be included under shareholders' equity or
classified as temporary equity, as prescribed by the Financial Accounting
Standards Board or by the Commission (i.e. contingent stock repurchase
obligations), on a consolidated balance sheet of the Company and its
Subsidiaries as at such time plus special charges (which would be designated as
merger-related charges and expenses in the notes to the Company's audited annual
consolidated financial statements) incurred in merging of operations related to
mergers and acquisitions.
"Conversion Date" has the meaning specified in Section
312(d).
"Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Union or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office on the date of execution of this
Indenture is located at [450 West 33rd Street, 15th Floor, New York, New York
10001-2697, Attention: Global Trust Services], except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"Debt" means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
<PAGE>
5
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section
307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 312(f).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Union" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or
a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with
<PAGE>
6
Section 302 in the relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate, sent (in the case of a telex)
or signed (in the case of a certificate) by the Treasurer or any Vice President
of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title
11 of the United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of
the United States.
"Government Obligations" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, securities
which are (i) direct obligations of the government which issued the Currency in
which the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such Currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one
<PAGE>
7
or more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity may be more
or less than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any pledge, mortgage, lien, charge, encumbrance
or security interest.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another principal
market for the Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
<PAGE>
8
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officer's Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
<PAGE>
9
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
<PAGE>
10
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any plant, warehouse, technology
center or other property, together with the land upon which it is erected and
fixtures comprising a part thereof, owned by the Company or any Restricted
Subsidiary and located in the United States, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 10% of Consolidated
Tangible Net Worth, other than any such plant, warehouse, technology center or
other property or any portion thereof (together with the land upon which it is
erected and fixtures comprising a part thereof) which, in the opinion of the
Board of Directors, is not of material importance to the total business
conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within any series means
the date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any
Security to be repaid at the option of the Holder, the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
shall mean any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with
<PAGE>
11
respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if
any) and unpaid interest on (x) indebtedness of the Company (including
indebtedness of others guaranteed by the Company), whether outstanding on the
date hereof or thereafter created, incurred, assumed or guaranteed, for money
borrowed other than (a) any indebtedness of the Company which when incurred and
without respect to any election under Section 1111(b) of the Federal Bankruptcy
Code, was without recourse to the Company, (b) any Indebtedness of the Company
to any of its subsidiaries, (c) Indebtedness to any employee of the Company, (d)
any liability for taxes and (e) Trade Payables, unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding it
is provided that such indebtedness is not senior or prior in right of payment to
the Securities, and (y) renewals, extensions, modifications and refundings of
any such indebtedness. This definition may be modified or superceded by a
supplemental indenture.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trade Payables" means accounts payable or any other
indebtedness or monetary obligations to trade creditors created or assumed by
the Company or any Subsidiary of the Company in the ordinary course of business
in connection with the obtaining of materials or services.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions
<PAGE>
12
of this Indenture, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" means stock 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 a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) 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, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically
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13
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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14
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer
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15
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
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16
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
[Attention: Global Trust Services], or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or by overnight delivery service, to the Company addressed to
it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities 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 of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day at least twice,
the first such
<PAGE>
17
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
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.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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18
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE
REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE
GOVERNED BY SUCH PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than a provision
in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal (or premium, if any)
or interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification
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19
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the forms of Securities or
coupons of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities or coupons. Any
portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[THE CHASE MANHATTAN BANK],
as Trustee
By ________________________
Authorized Officer
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20
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(8) of Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Security in global form if such Security
was never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
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21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
shall be subordinated in right of payment to Senior Indebtedness as provided in
Article Sixteen.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the form and title of the Securities of the series (which
shall distinguish the Securities of the series from all other series
of Securities) and whether such Securities are senior or subordinated;
(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 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest shall be payable,
the right, if any, of the Company to defer or extend an Interest
Payment Date, and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or
the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated if other than on the
basis of a 360-day year of twelve 30-day months;
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22
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the
series shall be payable, where any Registered Securities of the series
may be surrendered for registration of transfer, where Securities of
the series may be surrendered for exchange, where Securities of the
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable and, if different than the
location specified in Section 106, the place or places where notices
or demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have that option;
(7) the obligation or right, if any, of the Company to
redeem, repay or purchase Securities of the series pursuant to any
sinking fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price or prices
at which, the Currency in which, and other terms and conditions upon
which Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(11) if other than Dollars, the Currency in which payment of
the principal of (or premium, if any) or interest, if any, on the
Securities of the series shall be payable or in which the Securities
of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of
any of the provisions of Section 312;
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23
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a Currency
other than that in which such Securities are denominated or stated to
be payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu of
any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if
any;
(15) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen
that shall be applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to Section 1011) of the Company with
respect to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, whether Registered Securities
of the series may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and
<PAGE>
24
regulations), and the circumstances under which and the place or
places where any such exchanges may be made and if Securities of the
series are to be issuable in global form, the identity and any
temporary global security representing Outstanding Securities of any
initial depository therefor;
(19) the date as of which any Bearer Securities of the series
and any temporary global security representing Outstanding Securities
shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(20) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(21) if Securities of the 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/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(23) whether, under what circumstances and the Currency in
which the Company will pay Additional Amounts as contemplated by
Section 1005 on the Securities of the series to any Holder who is not
a United States person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option);
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(25) whether the Securities of such series are subject to
subordination and the terms of such subordination; and
(26) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
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25
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution or pursuant to
authority granted by one or more Board Resolutions (subject to Section 303) and
set forth in such Officer's Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions, such Board Resolutions shall be delivered to
the Trustee at or prior to the delivery of the Officer's Certificate setting
forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect
to Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in the
denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or a Vice
President, under its corporate seal reproduced thereon attested by its Secretary
or an Assistant Secretary. The signature of any of these officers on the
Securities or coupons may be the manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in
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26
accordance with such Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate in
the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15
days prior to the earlier of the date on which such Bearer Security is delivered
and the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, stated maturity, date of
issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
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27
general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities, any coupons
and of the supplemental indentures, if any, have been complied with
and that authentication and delivery of such Securities and any
coupons and the execution and delivery of the supplemental indenture,
if any, by the Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate
action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will
not contravene the articles of incorporation or by-laws of the Company
or result in any violation of any of the terms or provisions of any
law or regulation or of any indenture, mortgage or other agreement
known to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs
prior to or at the time of issuance of each Security, but such documents shall
be delivered prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for
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28
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as conclusively the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL S.A., for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
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29
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301); and provided further that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL S.A., as the case may be, to request such exchange on his
behalf and delivers to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or CEDEL S.A. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
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30
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and of
like tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL
S.A. on such Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other form as may be established pursuant to
Section 301), for credit without further interest thereon on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL S.A., as the case may be,
a certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to
this Indenture (or in such other form as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section and of the third
paragraph of Section 303 of this Indenture and the interests of the Persons who
are the beneficial owners of the temporary global Security with respect to which
such certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest, if any, owing with respect to a
beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the "Security
Registrar") for the purpose of registering Registered Securities and transfers
of Registered Securities as herein provided.
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31
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officer's Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date
<PAGE>
32
for payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and provided, further,
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any portion of
a permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only
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33
to the Person to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 1103 or 1203 and ending at the close
of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
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34
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated Security or coupon has become or is about to become due and
payable, the Company in itsdiscretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; provided, however, that payment
of principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security
<PAGE>
35
to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Security and its coupons, if
any, or the mutilated, destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest, if any, on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 309,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and CEDEL S.A. with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
CEDEL S.A. to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if
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36
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the Persons in
whose name the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by
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37
the Company on the date or dates specified on the face of such Security (each
an "Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note. Not later than 40
days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior
to the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any
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38
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Optional Extension of Stated Maturity.
The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
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39
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 305 and
307) interest, if any, on such Security and for all other purposes whatsoever,
whether or not such 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.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupons 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.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee.
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40
If the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall timely direct that cancelled Securities be
returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect
to Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has
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41
been sent by such Holder or such transferee). Any Holder of any such Registered
Security whoshall not have delivered any such election to the Trustee not later
than the close of business on the applicable Election Date will be paid the
amount due on the applicable payment date in the relevant Currency as provided
in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if
the election referred to in paragraph (b) above has been provided for pursuant
to Section 301, then, unless otherwise specified pursuant to Section 301, not
later than the fourth Business Day after the Election Date for each payment date
for Registered Securities of any series, the Exchange Rate Agent will deliver to
the Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Securities with respect
to such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
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42
(e) Unless otherwise specified pursuant to Section 301, if
the Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms
shall have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts
of such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If
after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies,
having an aggregate Dollar Equivalent value at the Market Exchange
Rate on the date of such replacement equal to the Dollar Equivalent
value of the Specified Amount of such former Component Currency at
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43
the Market Exchange Rate immediately before such division and such
amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited to, the
ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any
Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component
Currency shall, for purposes of calculating the Dollar Equivalent of
the Currency Unit, be converted into Dollars at the Market Exchange
Rate in effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13) of Section
301 by which the written election referred to in paragraph (b) above
may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the ECU or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
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44
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent.
(a) Unless otherwise specified pursuant to Section 301, if
and so long as the Securities of any series (i) are denominated in a Currency
other than Dollars or (ii) may be payable in a Currency other than Dollars, or
so long as it is required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause the Exchange
Rate Agent to make the necessary foreign exchange determinations at the time and
in the manner specified pursuant to Section 301 for the purpose of determining
the applicable rate of exchange and, if applicable, for the purpose of
converting the issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto and any right to receive Additional Amounts as contemplated by
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45
Section 1005) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as
to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case
of (i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in
the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may
be;
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46
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606, the
obligations of the Trustee to any Authenticating Agent under Section 611 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003, the last sentence of Section 1005, and the
penultimate paragraph of Section 1405 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
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47
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article
Twelve; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture which affects or is
applicable to the Securities of that series (other than a default in
the performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in this Section, and continuance of
such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under the Federal Bankruptcy Code or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Code or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due; or
(7) any other Event of Default provided with respect to
Securities of that series.
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48
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default described in clause (1), (2), (3),(4)
or (7) of Section 501 with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified portion thereof)
shall become immediately due and payable. If an Event of Default specified in
Sections 501(5) or 501(6) occurs and is continuing, then the principal amount of
all the Securities then Outstanding (or, if any such Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect
to Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest, if any, on all Outstanding
Securities of that series (or of all series, as the case may
be) and any related coupons,
(B) all unpaid principal of (and premium, if any)
any Outstanding Securities of that series (or of all series,
as the case may be) which has become due otherwise than by
such declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) interest on overdue interest, if any, at the
rate or rates prescribed therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 5 Business Days,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, and interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) occurs and is continuing, the
Trustee may in its discretion proceed to protect and
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enforce its rights and the rights of the Holders of Securities of such series
(or of all series, as the case may be) by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, 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 on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest, if any, owing and unpaid in respect of the Securities 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
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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51
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, if any, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the
Securities and coupons in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related
coupons shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2), (3), (4), or (7) of Section 501,
or, in the case of any Event of Default described in clause
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52
(5) or (6) of Section 501, the Holders of not less than 25% in
principal amount of all Outstanding Securities, shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority or more in principal amount of the Outstanding Securities
of that series in the case of any Event of Default described in clause
(1), (2), (3), (4) or (7) of Section 501, or, in the case of any Event
of Default described in clause (5) or (6) of Section 501, by the
Holders of a majority or more in principal amount of all Outstanding
Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 501, or of Holders of
all Securities in the case of any Event of Default described in clause (5) or
(6) of Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4) or (7) of Section 501, or of
Holders of all Securities in the case of any Event of Default described in
clause (5) or (6) of Section 501.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of (and premium, if
any) and (subject to Section 307) interest, if any, on, such Security or payment
of such coupon on the respective Stated Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
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53
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, 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.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, relating to or arising under clause
(1), (2), (3), (4) or (7) of Section 501, and, with respect to all Securities,
the Holders of not less than a majority in principal amount of all Outstanding
Securities 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, not relating to or arising under
clause (1), (2), (3), (4) or (7) of Section 501, provided that in each case
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(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default described in clause (1), (2), (3), (4) or (7) of Section 501 (or, in the
case of a default described in clause (5) or (6) of Section 501, the Holders of
not less than a majority in principal amount of all Outstanding Securities may
waive any such past default), and its consequences, except a default
(1) in respect of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or any related
coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
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55
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to a Responsible Officer of the Trustee, unless such Default
shall have been cured or waived; provided, however, that, except in the case of
a Default in the payment of the principal of (or premium, if any) or interest,
if any, on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series and any
related coupons; and provided further that in the case of any Default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) except during an Event of Default, the Trustee undertakes
to perform such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
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.
(3) if any Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise as a prudent person
would exercise or use under the circumstances in the conduct of such
person's own affairs.
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(4) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(5) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(6) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(7) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(8) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(9) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(10) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians, or nominees and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent, attorney, custodian, or nominee appointed with due care
by it hereunder;
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(11) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(12) in the event that the Trustee is also acting as Paying
Agent, transfer agent, or registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Six shall
also be afforded to such Paying Agent, transfer agent, or registrar.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
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SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors,
employees, and agents for, and to hold it or them harmless against,
any loss, liability or expense incurred without negligence or bad
faith on its or their part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself or themselves
against any claim or liability in connection with the exercise or
performance of any of its or their powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or (6), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture and the earlier resignation or removal of the Trustee.
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SECTION 607. Corporate Trustee Required; Eligibility
There shall be at all times a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of Federal, State, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609 and any and all
amounts then due and owing to the Trustee hereunder have been paid in full.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of not less than a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
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SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
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(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding,
the Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
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63
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 606.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[THE CHASE MANHATTAN BANK],
as Trustee
By ________________________
as Authenticating Agent
By ________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with TIA Section 312, 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 TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after [|X|] of each year commencing with the
first [|X|] after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit to the Holders of Securities, in the manner and to
the extent provided in TIA Section 313(c), a brief report dated as of such [|X|]
if required by TIA Section 313(a).
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SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, 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 Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or into any other
corporation or transfer all or substantially all of its property and assets as
an entirety to any Person, unless:
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66
(a) either the Company shall be the continuing Person, or the
Person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety are
transferred is a corporation organized and existing under the laws of
the United States or any State thereof or the District of Columbia
which expressly assumes all of the obligations of the Company under
each series of Securities and this Indenture with respect to each such
series, and
(b) immediately before and immediately after giving effect to
such transaction, no Event of Default and no event which, after notice
or passage of time or both, would become an Event of Default shall
have occurred and be continuing. Notwithstanding the foregoing, any
Subsidiary may consolidate with, merge with or into or transfer all or
part of its properties and assets to the Company or any other
Subsidiary or Subsidiaries.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company with or into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, and be subject to every obligation of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and in the event of any such conveyance or
transfer, the Company (which term shall for this purpose mean the Person named
as the "Company" in the first paragraph of this Indenture or any successor
Person which shall theretofore become such in the manner described in Section
801), except in the case of a lease, shall be discharged of all obligations and
covenants under this Indenture and the Securities and the coupons and may be
dissolved and liquidated.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
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(6) to secure the Securities pursuant to the requirements of
Section 1009 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities, to
cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising
under this Indenture; provided such action shall not adversely affect
the interests of the Holders of Securities of any series and any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affect such series of Securities or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of (or
premium, if any) or any installment of interest on any Security of
such series, or reduce the principal amount thereof (or premium, if
any) or the rate of interest, if any, thereon, or change any
obligation of the Company to pay Additional Amounts contemplated by
Section 1005
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(except as contemplated by Section 801(1) and permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue
Discount Security of such series that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option
of any Holder of any Security of such series, or change any Place of
Payment where, or the Currency in which, any Security of such series
or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at
the option of the Holder, on or after the Redemption Date or Repayment
Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301
herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture which affect such
series or certain defaults applicable to such series hereunder and
their consequences provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting with respect to
Securities of such series, or
(3) modify any of the provisions of this Section, Section 513
or Section 1011, except to increase any such percentage or to provide
that certain other provisions of this Indenture which affect such
series cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
SECTION 908. Effect on Senior Indebtedness. No supplemental
indenture shall adversely affect the rights of any holder of Senior Indebtedness
under Article Sixteen without the consent of such holder.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities and any related coupons that it will duly
and punctually pay the principal of (and premium, if any) and interest, if any,
on the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The City of New York, an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise) (B) subject to any laws
or regulations applicable thereto, in a Place of Payment for that series which
is located outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment;
provided, however, that, if the Securities of that series are listed on any
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of
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Payment for that series located outside the United States an office or agency
where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible and exchangeable
may be surrendered for conversion or exchange, as applicable and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in Dollars, payment of
principal of (and premium, if any) and interest, if any, on any Bearer Security
shall be made at the office of the Company's Paying Agent in The City of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or agencies outside the
United States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities as contemplated by Section 301 with respect to a
series of Securities, the Company hereby designates as a Place of Payment for
each series of Securities the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) and interest, if any, on Securities of such
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal of (or premium, if any) or interest, if any,
on the Securities of such series; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 1004, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of
additional amounts to any Holder who is not a United States person in respect of
any tax, assessment or governmental charge ("Additional Amounts"), the Company
will pay to the Holder of any Security of such series or any coupon appertaining
thereto such Additional Amounts as may be specified as contemplated by
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Section 301. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal (or premium, if any) or interest, if any, on, or in
respect of, any Security of a series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of a series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such series established pursuant to Section 301 to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (or premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal, premium or interest on the Securities of that series shall
be made to Holders of Securities of that series or any related coupons who are
not United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officer's
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled to (i) assume that no such withholding or deduction is required with
respect to any payment of principal of (or premium, if any) or interest, if any,
on any Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal of
(and premium, if any) and interest, if any, on the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee, any Paying Agent, and their
respective officers, directors, employees, and agents for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officer's Certificate
furnished pursuant to this Section. This sentence shall survive the termination
of this Indenture and the earlier resignation or removal of the Trustee.
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SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company or
any Restricted Subsidiary, and (2) all material lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon any
Principal Property of the Company or any Restricted Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Maintenance of Principal Properties.
The Company will cause all Principal Properties to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent or restrict the
sale, abandonment or other disposition of any of such Principal Properties if
such action is, in the judgment of the Company, desirable in the conduct of the
business (financial or otherwise) of the Company and its Subsidiaries as a whole
and not disadvantageous in any material respect to the Holders.
SECTION 1008. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of the
Company and any Restricted Subsidiary; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole.
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SECTION 1009. Limitation on Liens.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Company or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(f) Liens in existence on the date of the first issuance by
the Company of Securities issued pursuant to this Indenture; provided
that no such Lien is spread to cover any additional property after
such date and that the amount of Debt secured thereby is not
increased;
(g) Liens securing Debt of the Company and its Subsidiaries
incurred to finance the acquisition of fixed or capital assets;
provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than
the property financed by such Debt and (iii) the amount of Debt
secured thereby is not increased;
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(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof; provided that (i) such
Liens existed at the time such corporation became a Subsidiary and
were not created in anticipation thereof, (ii) any such Lien is not
spread to cover any property or assets or such corporation after the
time such corporation becomes a Subsidiary, and (iii) the amount of
Debt secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) (i) which
secure obligations not exceeding (as to the Company and all
Subsidiaries) the greater of (X) $100,000,000 or (Y) 15% of
Consolidated Net Worth, in each case in aggregate amount at any time
outstanding or (ii) with respect to which the Company effectively
provides that the Securities Outstanding hereunder are secured equally
and ratably with (or, at the option of the Company, prior to) the Debt
secured by such Lien.
SECTION 1010. Waiver of Certain Covenants.
The Company may, with respect to any series of Securities,
omit in any particular instance to comply with any term, provision or condition
which affects such series set forth in Sections 1006 to 1010, inclusive, or, as
specified pursuant to Section 301(15) for Securities of such series, in any
covenants of the Company added to Article Ten pursuant to Section 301(14) or
Section 301(15) in connection with Securities of such series, if the Holders of
at least a majority in principal amount of all Outstanding Securities affected
by such term, provision or condition, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in
Section 1106, if any,
(3) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption
Price and accrued interest, if any, to the Redemption Date
payable as provided in Section 1106 will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the
Redemption Price unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished,
and
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not
to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption
on such Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such
exchanges may be made.
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Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if
any, on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and
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the Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of
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Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
Subject to Section 1203, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company, together, in the
case of any Bearer Securities of such series, with all unmatured coupons
appertaining thereto, and/or (2) receive credit for the principal amount of
Securities of such series which have been previously delivered to the Trustee by
the Company or for Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking
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fund payment without the option to deliver or credit Securities as provided in
Section 1202 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to the principal (and premium, if any) and any interest that will accrue
to the date fixed for redemption of Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
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SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option
of the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places or which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
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SECTION 1304. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
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SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Registered Security or Securities of
the same series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402, or
covenant defeasance of or within a series under Section 1403 in accordance with
the terms of such Securities and in accordance with this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the payment of
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Additional Amounts, if any, on such Securities as contemplated by Section 1005,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
including, without limitation, Section 606, the last sentence of Section 1005,
and the penultimate paragraph of Section 1405 and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section 1402 notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 801 and 802 and Sections
1006 through 1010, and, if specified pursuant to Section 301, its obligations
under any other covenant, with respect to such Outstanding Securities and any
related coupons on and after the date the conditions set forth in Section 1404
are satisfied (hereinafter, "covenant defeasance"), and such Securities and any
related coupons shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(4) or Section 501(8) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
related coupons shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
either Section 1402 or Section 1403 to any Outstanding Securities of or within a
series and any related coupons:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any related coupons, (A)
an amount (in such Currency in which such Securities and any related
coupons are then specified as payable at Stated Maturity), or (B)
Government Obligations applicable to such Securities (determined on
the basis of the Currency in which such Securities are then specified
as payable at Stated Maturity) which through the scheduled
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payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment of principal of and premium, if any, and interest,
if any, under such Securities and any related coupons, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities
and any related coupons on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest, if any, and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
related coupons on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Securities
and any related coupons; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the Company
may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms
of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (5)
and (6) of Section 501 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).
(3) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any related coupons will not recognize
income, gain or loss for federal income tax purposes as a result of
the deposit and such defeasance and will be subject to federal income
tax on the same amounts, in the
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same manner and at the same times as would have been the case if the
deposit and such defeasance had not occurred.
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any
related coupons 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 the
deposit and such covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 301.
(7) The Company 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 either the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
1405, the "Trustee") pursuant to Section 1404 in respect of such Outstanding
Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any related coupons
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or
by the terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the
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indebtedness represented by such Security and any related coupons shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any) and interest, if any, on such
Security as they become due out of the proceeds yielded by converting (from time
to timeas specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable Market Exchange Rate for such Currency in effect on the third
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
related coupons. This sentence shall survive the termination of this Indenture
and the earlier resignation or removal of the Trustee.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1405 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 Company's
obligations under this Indenture and such Securities and any related coupons
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1405; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest, if any, on any such Security or any related
coupon following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities and any related
coupons to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities,
a meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in The City of New York or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder of Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the
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Person entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that, if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
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Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as its shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
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(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined as
specified in the definition of "Outstanding" in Section 101); provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. In the event a series
of Securities is designated as subordinated pursuant to Section 301 and except
as otherwise provided in a supplemental indenture or pursuant to Section 301,
the Company, for itself, its successors and assigns, covenants and agrees, and
each Holder of Securities of such series by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if any)
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and interest, if any, on each and all of the Securities of such series is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
holders thereof by a lawful plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Securities are
entitled to receive any payment upon the principal (or premium, if
any) or interest, if any, on indebtedness evidenced by the Securities;
and
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Sixteen shall be paid by the
liquidation trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be
paid over, upon written notice to the Trustee, to the holder of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior
Indebtedness remaining unpaid until all such
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Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness,
the Holders of the Securities shall be subrogated to the rights of the holders
of Senior Indebtedness (to the extent that distributions otherwise payable to
such Holder have been applied to the payment of Senior Indebtedness) to receive
payments or distributions of cash, property or securities of the Company
applicable to Senior Indebtedness until the principal of (and premium, if any)
and interest, if any, on the Securities shall be paid in full and no such
payments or distributions to the Holders of the Securities of cash, property or
securities otherwise distributable to the holders of Senior Indebtedness shall,
as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities be deemed to be a payment by the
Company to or on account of the Securities. It is understood that the provisions
of this Article Sixteen are and are intended solely for the purpose of defining
the relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand. Nothing contained in this
Article Sixteen or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest, if any, on the
Securities as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or in the Securities prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy. Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee, subject to the provisions of Section 601,
shall be entitled to rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereof
and all other facts pertinent thereto or to this Article Sixteen.
The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be
liable to any such holder if it shall pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article Sixteen.
If the Trustee or any Holder of Securities does not file a
proper claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim in
such proceeding, then the holder of any Senior
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Indebtedness is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder of Securities.
SECTION 1603. No Payment on Securities in Event of Default on
Senior Indebtedness. No payment by the Company on account of principal (or
premium, if any), sinking funds or interest, if any, on the Securities shall be
made at anytime if: (i) a default on Senior Indebtedness exists that permits the
holders of such Senior Indebtedness to accelerate its maturity and (ii) the
default is the subject of judicial proceedings or the Company has received
notice of such default. The Company may resume payments on the Securities when
full payment of amounts then due for principal (premium, if any), sinking funds
and interest on Senior Indebtedness has been made or duly provided for in money
or money's worth.
SECTION 1604. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 1602 and 1603, payments of principal of (or
premium, if any) or interest, if any, on the Securities or (b) prevent the
application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on the Securities, unless the Trustee shall have received at its
Corporate Trust Office written notice of any event prohibiting the making of
such payment more than two Business Days prior to the date fixed for such
payment.
SECTION 1605. Authorization of Holders to Trustee to Effect
Subordination. Each Holder of Securities by his acceptance thereof authorizes
and direct the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Sixteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1606. Notices to Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, neither
the Trustee nor any Paying Agent (other than the Company) shall be charged with
knowledge of the existence of any Senior Indebtedness or of any event which
would prohibit the making of any payment of moneys to or by the Trustee or such
Paying Agent, unless and until the Trustee or such Paying Agent shall have
received (in the case of the Trustee, at its Corporate Trust Office) written
notice thereof from the Company or from the holder of any Senior Indebtedness or
from the trustee for any such holder, together with proof satisfactory to the
Trustee of such holding of Senior Indebtedness or of the authority of such
trustee; provided, however, that if at least two Business Days prior to the date
upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of either the principal (or
premium, if any) or interest, if any, on any Security) the Trustee shall not
have received with respect to such moneys the notice provided for in this
Section 1606, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary, which may be received by it within two
Business Days prior to such date. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of
<PAGE>
99
Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such a notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Sixteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Sixteen and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1607. Trustee as Holder of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article Sixteen in respect of any Senior Indebtedness at any time held
by it to the same extent as any other holder of Senior Indebtedness and nothing
in Section 613 or elsewhere in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1608. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or
the exercise by the holders of Senior Indebtedness of any of their rights under
any instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action in
respect of, any liability or obligation under or in respect of, or of any of the
terms, covenants or conditions of any indenture or other instrument under which
any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether
or not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Securities relating to the subordination thereof.
SECTION 1609. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article Sixteen, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
<PAGE>
100
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution to holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Sixteen.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
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 the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By:__________________________
Name:
Title:
Attest:
THE CHASE MANHATTAN BANK
By:__________________________
Name:
Title:
Attest:
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise [Name of Issuer] or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-1-1
<PAGE>
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to
[U.S.$]__________ of such interest in the above-captioned Securities in respect
of which we are not able to certify and as to which we understand an exchange
for an interest in a Permanent Global Security or an exchange for and delivery
of definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
_____________________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$]__________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise [Name of Issuer] or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-2-1
<PAGE>
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear
System]
[CEDEL S.A.]
By_____________________________________
A-2-2
1
DECLARATION OF TRUST
OF
BSC CAPITAL TRUST
This DECLARATION OF TRUST, dated as of September 25, 1998, is executed
and delivered by and among Boston Scientific Corporation, a Delaware
corporation, as sponsor (the "Sponsor") and The Chase Manhattan Bank, Delaware,
Paul W. Sandman and Janet M. Kelly, as trustees (the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BSC Capital Trust (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Secretary of State of the State of Delaware in accordance with the
provisions of the Business Trust Act.
3. At the time of issuance of the Trust Preferred Securities, the
Sponsor, the Trustees and certain other parties will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party and having
substantially the terms described in the Prospectus (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Trust Preferred Securities and Trust Common Securities referred
to therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions as
are deemed necessary or advisable to effect the transactions contemplated in the
Amended and Restated Declaration of Trust.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, in its discretion, (i) to prepare and
distribute on behalf of the Trust a registration statement for filing with the
Securities and Exchange Commission (the "Commission"), including one or more
prospectuses, together with any necessary or desirable amendments thereto and
any exhibits contained therein or forming a part thereof (the
<PAGE>
2
"Prospectus") relating to the proposed offering and sale by the Trust of its
Trust Preferred Securities and Trust Common Securities; (ii) to file with The
New York Stock Exchange and execute on behalf of the Trust a listing application
or applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Trust
Preferred Securities to be listed on such exchange; (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Sponsor, on behalf of the Trust, may deem necessary or
desirable to qualify or register the Trust Preferred Securities under, or obtain
for the Trust Preferred Securities an exemption from, the securities or "Blue
Sky" laws in such jurisdictions as the Sponsor may determine; (iv) to execute on
behalf of the Trust such underwriting or purchase agreements and related
agreements with one or more underwriters, purchasers or agents relating to the
offering of the Trust Preferred Securities as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; (v) to execute on behalf of the Trust
any and all documents, papers and instruments as may be desirable in connection
with any of the foregoing; (vi) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and provide for reasonable compensation
for such services; and (vii) to incur expenses which are necessary or incidental
to carry out any of the purposes of the Trust. If any filing referred to in
clauses (i), (ii) and (iii) above is required by law or by the rules and
regulations of applicable governmental agency, self-regulatory organization or
other person or organization to be executed on behalf of the Trust by one of the
Trustees, the Sponsor and any of the Trustees appointed pursuant to Section 6
hereof are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing, it being understood that The Chase
Manhattan Bank, Delaware, in its capacity as trustee of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, such
exchange or state securities or Blue Sky laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three, and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor, which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon 30 days' prior notice to the
Sponsor; provided, however, that such notice shall not be required if it is
waived by the Sponsor.
<PAGE>
3
7. The Trust may terminate without issuing any Trust Preferred
Securities at the election of the Sponsor.
8. THIS DECLARATION OF TRUST SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
BOSTON SCIENTIFIC CORPORATION
as Sponsor
By: /s/ Paul W. Sandman
------------------------
Name: Paul W. Sandman
Title: Senior Vice President, Secretary
and General Counsel
CHASE MANHATTAN BANK
DELAWARE,
as Trustee
By: /s/ Denis Kelly
------------------------
Name: Denis Kelly
Title: Trust Officer
PAUL W. SANDMAN, as Trustee
/s/ Paul W. Sandman
----------------------------
JANET M. KELLY, as Trustee
/s/ Janet M. Kelly
----------------------------
1
DECLARATION OF TRUST
OF
BSC CAPITAL TRUST II
This DECLARATION OF TRUST, dated as of September 29, 1998, is executed
and delivered by and among Boston Scientific Corporation, a Delaware
corporation, as sponsor (the "Sponsor") and The Chase Manhattan Bank, Delaware,
Paul W. Sandman and Janet M. Kelly, as trustees (the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BSC Capital Trust II
(the "Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Secretary of State of the State of Delaware in accordance with the
provisions of the Business Trust Act.
3. At the time of issuance of the Trust Preferred Securities, the
Sponsor, the Trustees and certain other parties will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party and having
substantially the terms described in the Prospectus (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Trust Preferred Securities and Trust Common Securities referred
to therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions as
are deemed necessary or advisable to effect the transactions contemplated in the
Amended and Restated Declaration of Trust.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, in its discretion, (i) to prepare and
distribute on behalf of the Trust a registration statement for filing with the
Securities and Exchange Commission (the "Commission"), including one or more
prospectuses, together with any necessary or desirable amendments thereto and
any exhibits contained therein or forming a part thereof (the
<PAGE>
2
"Prospectus") relating to the proposed offering and sale by the Trust of its
Trust Preferred Securities and Trust Common Securities; (ii) to file with The
New York Stock Exchange and execute on behalf of the Trust a listing application
or applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Trust
Preferred Securities to be listed on such exchange; (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Sponsor, on behalf of the Trust, may deem necessary or
desirable to qualify or register the Trust Preferred Securities under, or obtain
for the Trust Preferred Securities an exemption from, the securities or "Blue
Sky" laws in such jurisdictions as the Sponsor may determine; (iv) to execute on
behalf of the Trust such underwriting or purchase agreements and related
agreements with one or more underwriters, purchasers or agents relating to the
offering of the Trust Preferred Securities as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; (v) to execute on behalf of the Trust
any and all documents, papers and instruments as may be desirable in connection
with any of the foregoing; (vi) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and provide for reasonable compensation
for such services; and (vii) to incur expenses which are necessary or incidental
to carry out any of the purposes of the Trust. If any filing referred to in
clauses (i), (ii) and (iii) above is required by law or by the rules and
regulations of applicable governmental agency, self-regulatory organization or
other person or organization to be executed on behalf of the Trust by one of the
Trustees, the Sponsor and any of the Trustees appointed pursuant to Section 6
hereof are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing, it being understood that The Chase
Manhattan Bank, Delaware, in its capacity as trustee of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, such
exchange or state securities or Blue Sky laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three, and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor, which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon 30 days' prior notice to the
Sponsor; provided, however, that such notice shall not be required if it is
waived by the Sponsor.
<PAGE>
3
7. The Trust may terminate without issuing any Trust Preferred
Securities at the election of the Sponsor.
8. THIS DECLARATION OF TRUST SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
BOSTON SCIENTIFIC CORPORATION
as Sponsor
By: /s/ Paul W. Sandman
------------------------
Name: Paul W. Sandman
Title: Senior Vice President, Secretary
and General Counsel
CHASE MANHATTAN BANK
DELAWARE,
as Trustee
By: /s/ John J. Cashin
------------------------
Name: John J. Cashin
Title: Trust Officer
PAUL W. SANDMAN, as Trustee
/s/ Paul W. Sandman
----------------------------
JANET M. KELLY, as Trustee
/s/ Janet M. Kelly
----------------------------
DECLARATION OF TRUST
OF
BSC CAPITAL TRUST III
This DECLARATION OF TRUST, dated as of September 29, 1998, is executed
and delivered by and among Boston Scientific Corporation, a Delaware
corporation, as sponsor (the "Sponsor") and The Chase Manhattan Bank, Delaware,
Paul W. Sandman and Janet M. Kelly, as trustees (the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as BSC Capital Trust III
(the "Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Secretary of State of the State of Delaware in accordance with the
provisions of the Business Trust Act.
3. At the time of issuance of the Trust Preferred Securities, the
Sponsor, the Trustees and certain other parties will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party and having
substantially the terms described in the Prospectus (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Trust Preferred Securities and Trust Common Securities referred
to therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions as
are deemed necessary or advisable to effect the transactions contemplated in the
Amended and Restated Declaration of Trust.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, in its discretion, (i) to prepare and
distribute on behalf of the Trust a registration statement for filing with the
Securities and Exchange Commission (the "Commission"), including one or more
prospectuses, together with any necessary or desirable amendments thereto and
any exhibits contained therein or forming a part thereof (the
<PAGE>
2
"Prospectus") relating to the proposed offering and sale by the Trust of its
Trust Preferred Securities and Trust Common Securities; (ii) to file with The
New York Stock Exchange and execute on behalf of the Trust a listing application
or applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Trust
Preferred Securities to be listed on such exchange; (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Sponsor, on behalf of the Trust, may deem necessary or
desirable to qualify or register the Trust Preferred Securities under, or obtain
for the Trust Preferred Securities an exemption from, the securities or "Blue
Sky" laws in such jurisdictions as the Sponsor may determine; (iv) to execute on
behalf of the Trust such underwriting or purchase agreements and related
agreements with one or more underwriters, purchasers or agents relating to the
offering of the Trust Preferred Securities as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; (v) to execute on behalf of the Trust
any and all documents, papers and instruments as may be desirable in connection
with any of the foregoing; (vi) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and provide for reasonable compensation
for such services; and (vii) to incur expenses which are necessary or incidental
to carry out any of the purposes of the Trust. If any filing referred to in
clauses (i), (ii) and (iii) above is required by law or by the rules and
regulations of applicable governmental agency, self-regulatory organization or
other person or organization to be executed on behalf of the Trust by one of the
Trustees, the Sponsor and any of the Trustees appointed pursuant to Section 6
hereof are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing, it being understood that The Chase
Manhattan Bank, Delaware, in its capacity as trustee of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, such
exchange or state securities or Blue Sky laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three, and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor, which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon 30 days' prior notice to the
Sponsor; provided, however, that such notice shall not be required if it is
waived by the Sponsor.
<PAGE>
3
7. The Trust may terminate without issuing any Trust Preferred
Securities at the election of the Sponsor.
8. THIS DECLARATION OF TRUST SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
BOSTON SCIENTIFIC CORPORATION
as Sponsor
By: /s/ Paul W. Sandman
------------------------
Name: Paul W. Sandman
Title: Senior Vice President, Secretary
and General Counsel
CHASE MANHATTAN BANK
DELAWARE,
as Trustee
By: /s/ John J. Cashin
------------------------
Name: John J. Cashin
Title: Trust Officer
PAUL W. SANDMAN, as Trustee
/s/ Paul W. Sandman
----------------------------
JANET M. KELLY, as Trustee
/s/ Janet M. Kelly
----------------------------
EXHIBIT 4.14
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
among
BOSTON SCIENTIFIC CORPORATION
as Depositor,
[PROPERTY TRUSTEE],
as Property Trustee,
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
---------------
BSC CAPITAL TRUST
---------------
Dated as of ___________, _____
<PAGE>
BSC CAPITAL TRUST
Certain Sections of this Declaration relating to Sections 310
through 318 of the Trust Indenture Act of 1939:
[TO BE UPDATED]
Trust Indenture
Declaration Act Section Section
----------------------- -------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Declaration.
<PAGE>
TABLE OF CONTENTS
[To be updated]
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation...................................................1
SECTION 1.2. Certain Definitions..............................................2
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name............................................................11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....11
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.11
SECTION 2.4. Issuance of the Preferred Securities............................11
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debentures................................................11
SECTION 2.6. Declaration of Trust............................................12
SECTION 2.7. Authorization to Enter into Certain Transactions................12
SECTION 2.8. Assets of Trust.................................................15
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.................................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions...................................................16
SECTION 4.2. Redemption......................................................17
SECTION 4.3. Subordination of Common Securities..............................19
SECTION 4.4. Payment Procedures..............................................20
SECTION 4.5. Tax Returns and Reports.........................................20
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.....................20
i
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SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions..........20
SECTION 4.8. Liability of the Holder of Common Securities....................20
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...............................................20
SECTION 5.2. The Trust Securities Certificates...............................21
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.........21
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates..............................................21
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..............................................22
SECTION 5.6. Persons Deemed Holders..........................................22
SECTION 5.7. Access to List of Holders' Names and Addresses..................23
SECTION 5.8. Maintenance of Office or Agency.................................23
SECTION 5.9. Appointment of Paying Agent.....................................23
SECTION 5.10. Ownership of Common Securities by Depositor....................24
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.............................24
SECTION 5.12. Notices to Clearing Agency.....................................25
SECTION 5.13. Definitive Preferred Securities Certificates...................25
SECTION 5.14. Rights of Holders..............................................25
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights....................................27
SECTION 6.2. Notice of Meetings..............................................28
SECTION 6.3. Meetings of Holders of Preferred Securities.....................28
SECTION 6.4. Voting Rights...................................................29
SECTION 6.5. Proxies, etc....................................................29
SECTION 6.6. Holder Action by Written Consent................................29
SECTION 6.7. Record Date for Voting and Other Purposes.......................29
SECTION 6.8. Acts of Holders.................................................30
SECTION 6.9. Inspection of Records...........................................30
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee......................................31
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SECTION 7.2. Representations and Warranties of Depositor.....................32
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.............................32
SECTION 8.2. Certain Notices.................................................34
SECTION 8.3. Certain Rights of Property Trustee..............................34
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........36
SECTION 8.5. May Hold Securities.............................................36
SECTION 8.6. Compensation; Indemnity; Fees...................................37
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees....38
SECTION 8.8. Conflicting Interests...........................................38
SECTION 8.9. Co-Trustees and Separate Trustee................................38
SECTION 8.10. Resignation and Removal; Appointment of Successor..............40
SECTION 8.11. Acceptance of Appointment by Successor.........................41
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business....42
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust...42
SECTION 8.14. Reports by Property Trustee....................................43
SECTION 8.15. Reports to the Property Trustee................................43
SECTION 8.16. Evidence of Compliance with Conditions Precedent...............43
SECTION 8.17. Number of Trustees.............................................43
SECTION 8.18. Delegation of Power............................................44
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date................................44
SECTION 9.2. Early Termination...............................................44
SECTION 9.3. Termination.....................................................44
SECTION 9.4. Liquidation.....................................................45
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.................................................46
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders................................47
SECTION 10.2. Amendment......................................................48
SECTION 10.3. Separability...................................................49
SECTION 10.4. Governing Law..................................................49
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SECTION 10.5. Payments Due on Non-Business Day...............................49
SECTION 10.6. Successors.....................................................49
SECTION 10.7. Headings.......................................................49
SECTION 10.8. Reports, Notices and Demands...................................49
SECTION 10.9. Agreement Not to Petition......................................50
SECTION 10.10. Application of Trust Indenture Act............................50
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee and Indenture...51
iv
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
__________, _____ among (i) BOSTON SCIENTIFIC CORPORATION., a Delaware
corporation (including any successors or assigns, the "Depositor"), (ii)
[PROPERTY TRUSTEE], a ________ organized under the laws of ________, as property
trustee, (in each such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) THE CHASE MANHATTAN BANK DELAWARE, a _________ organized under the laws of
________, as Delaware trustee (the "Delaware Trustee"), (iv) ________, an
individual, ________, an individual, and ________, an individual, each of whose
address is c/o Boston Scientific Corporation, One Boston Scientific Place,
Natick, Massachusetts 01760-1537 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees, collectively, the "Trustees") and (v)
the several HOLDERS, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, the Depositor and certain of the Trustees have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Declaration of
Trust, dated as of September 25, 1998 (the "Original Declaration"), and by the
execution and filing by certain of the Trustees with the Secretary of State of
the State of Delaware of the Certificate of Trust, filed on September 25, 1998,
attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Declaration in its entirety as set forth herein to provide
for, among other things, (i) the issuance of the Common Securities by the Trust
to the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Securities and
(iv) the appointment of the Property Trustee, the Delaware Trustee, and
Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Declaration in its entirety and agrees as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation. For all purposes of this
Declaration, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
<PAGE>
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Declaration; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Declaration as a whole and not to
any particular Article, Section or other subdivision.
SECTION 1.2. Certain Definitions. For all purposes of this
Declaration, the following terms shall have the meanings assigned below:
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Debentures for such period.
"Additional Interest" means any interest on defaulted
interested payable pursuant to Section 3.07(a) of the Indenture.
"Administrative Trustee" means each of the Persons identified
as an "Administrative Trustee" in the preamble to this Declaration, solely in
such Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or such Administrative Trustee's successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; provided, however, that the Trust
shall not be deemed an Affiliate of the Depositor. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this
Declaration.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
2
<PAGE>
law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means (i) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, or (ii) a certificate signed by the authorized
officer or officers of the Depositor to whom the Board of Directors or a
committee thereof has delegated its authority and, in each case, delivered to
the Trustees.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than
(a) a Saturday or Sunday,
(b) a legal holiday or day on which banking institutions in
the City of New York are authorized or required by law, regulation or
executive order to remain closed, or
(c) a day on which the Property Trustee's Corporate Trust
Office or the Corporate Trust Office of the Debenture Trustee is closed
for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Preferred
Securities Certificates, substantially in the form attached as Exhibit B, as the
same may be amended and supplemented from time to time.
3
<PAGE>
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
Trust Company will be the initial Clearing Agency with respect to Preferred
Securities Certificates.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 of this Declaration such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Holder" means the holder of all or substantially all
of the Common Securities.
"Common Securities Certificate" means a certificate evidencing
Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $________ and having the
rights provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal office of the Property Trustee located at
________; Attention: ________, and (ii) when used with respect to the Debenture
Trustee, the principal office of the Debenture Trustee located in
_________________.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
4
<PAGE>
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, solely in its capacity as Debenture Trustee of the
Debentures and not in its individual capacity and any successor thereto.
"Debentures" means the aggregate principal amount of the
Depositor's ___% ____________________________, issued pursuant to the Indenture.
"Declaration" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including (i) all exhibits hereto and (ii) for
all purposes of this Declaration and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Declaration and any such modification, amendment or
supplement, respectively.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates
representing Book-Entry Preferred Securities Certificates as provided in Section
5.11(a) and (b) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Declaration, solely in its capacity
as Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means any one of the following events
(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) the occurrence of a Debenture Event of Default; or
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<PAGE>
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable;
or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Declaration (other than a covenant or warranty a default in the
performance or breach of which is described in clause (b) or (c) above)
and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time and the rules and regulations promulgated thereunder
by the Commission.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and ________, as trustee, contemporaneously with the
execution and delivery of this Declaration, for the benefit of the holders of
the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or
Trust Securities is registered in the Securities Register; any such Person shall
be a beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that for purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Declaration, so long as Definitive Preferred Securities Certificates
have not been issued as provided in Section 5.13, the term "Holders" shall refer
to the Owners.
"Indenture" means the Subordinated Debt Securities Indenture,
dated as of _______________, _____ between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to time.
6
<PAGE>
"Investment Company Event" means the receipt by the Trust of
an opinion of counsel to the Depositor experienced in such matters (which may be
counsel to the Depositor) to the effect that, as a result of the occurrence of a
change in law or regulation or a written change (including any announced
prospective change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act, which
change or prospective change becomes effective or would become effective, as the
case may be, on or after the date of the issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Debentures to
Holders in connection with a dissolution or liquidation of the Trust, Debentures
having a principal amount equal to the aggregate Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed. "Liquidation
Amount" means the stated amount of $________ per Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a covenant or condition provided for in this
Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
7
<PAGE>
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor and who
shall be reasonably acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the
recitals to this Declaration.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Declaration, except:
(a) Trust Securities theretofore canceled by the Securities
Registrar or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for the payment or redemption of which
money in the necessary amount theretofore has been deposited with the
Property Trustee or any Paying Agent for the Holders of such Trust
Securities; provided that, if such Trust Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Declaration;
(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided,
however, that in determining whether the Holders of the requisite
aggregate Liquidation Amount of Outstanding Preferred Securities have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that a Responsible Officer of such
Trustee actually knows to be so owned shall be so disregarded; and
(d) the foregoing shall not apply at any time when all the
outstanding Preferred Securities are owned by the Depositor, one or
more of the Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to
such Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
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"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means any individual, corporation, association
partnership, joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $______ and having the
rights provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Declaration, solely in its capacity
as Property Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for redemption thereof; provided that each Debenture
Redemption Date and the stated maturity of the Debentures shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount thereof, plus accumulated and unpaid Distributions to the
Redemption Date, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures,
allocated pro rata (based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Responsible Officer" shall mean when used with respect to the
Property Trustee any officer within the Corporate Trust Office including any
Vice President, Managing Director, Assistant Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Trust" means the Delaware business trust heretofore created,
and continued hereby, and identified on the cover page to this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this Declaration is executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of
the Trust under the Expense Agreement, (c) any cash on deposit in, or owing to,
the Payment Account and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Declaration.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee, and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of ____________, _____, among the Trust, the Depositor and the several
underwriters named therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known
as "BSC Capital Trust", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees
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may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business. The name and address of the Delaware Trustee, with a principal
place of business in the State of Delaware, is The Chase Manhattan Bank
Delaware, 1201 North Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Holders and the
Depositor. The principal executive office of the Trust is in care of Boston
Scientific Corporation, One Boston Scientific Place, Natick, Massachusetts
01760-1537.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt in trust from
the Depositor in connection with the Original Declaration of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. The
Depositor, on behalf of the Trust and pursuant to the Original Declaration,
executed and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Declaration, an Administrative Trustee, on behalf
of the Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, representing ________ Preferred Securities, having an aggregate
Liquidation Amount of $________ against receipt of the aggregate purchase price
of such Preferred Securities of $_________ which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures. Contemporaneously with the execution and delivery of
this Declaration, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, representing
______ Common Securities, having an aggregate Liquidation Amount of $________,
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal amount of
$____________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $____________ (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first
sentence of this Section 2.5).
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SECTION 2.6. Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and to use the
proceeds from such sale to acquire Debentures, and (b) to engage in those
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Trustees as trustees of the Trust, each to have all the rights,
powers and duties of such Trustee set forth herein, and the Trustees hereby
accept such appointment. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Trust and the Holders. The Administrative Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust.
Notwithstanding anything in this Declaration to the contrary, the Delaware
Trustee shall not be entitled to exercise any powers or authority (except to the
extent required under the Delaware Business Trust Act), nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Trustees
collectively, the Property Trustee or the Administrative Trustees set forth
herein. Notwithstanding any provision to the contrary in this Declaration or
elsewhere, the Delaware Trustee shall be one of the trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Delaware Business Trust Act and (except for such duties of the Delaware
Trustee as may be expressly set forth herein) the Delaware Trustee (both as such
and in its individual capacity) shall have no duties or liabilities to any
Person under this Declaration or otherwise in respect of or in connection with
the Trust, the Trust Securities, or its serving as a trustee of the Trust.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Declaration. Subject to the limitations set forth in Section
2.7(b), and in accordance with the following clauses (i) and (ii), the Trustees
shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Declaration,
and to perform all acts in furtherance thereof, including without limitation the
following:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Declaration as a trust indenture under the Trust
Indenture Act;
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(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Holders in accordance with this
Declaration;
(F) the appointment of a Paying Agent and Securities
Registrar in accordance with this Declaration;
(G) registering transfer of the Trust Securities in
accordance with this Declaration;
(H) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise required by the Trust Indenture
Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Administrative Trustees) any
documents that the Administrative Trustees have the power to
execute pursuant to this Declaration; and
(J) the taking of any action incidental or convenient
to the foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to give effect to
the terms of this Declaration for the benefit of the Holders
(without consideration of the effect of any such action on any
particular Holder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Holders in respect of the Trust
Securities;
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(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders in accordance with this Declaration;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration;
(H) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental or convenient to
the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Declaration and protect and conserve the Trust
Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Declaration remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Declaration, (ii)
sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to Holders, except
as expressly provided herein, (iii) take any action that would cause the Trust
to become taxable as a corporation for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other debt
or (v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Declaration are hereby ratified and confirmed in all respects): (i) the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration
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statement on the appropriate form in relation to the Preferred Securities,
including any amendments thereto; (ii) the determination of the States in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to the
Trustees of actions they must take on behalf of the Trust, and the preparation
for execution and filing of any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States; (iii) the
preparation for filing by the Trust and execution on behalf of the Trust of an
application to the New York Stock Exchange or any other national stock exchange
or the Nasdaq National Market for listing, upon notice of issuance, of any
Preferred Securities; (iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration statement
on Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the
Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or to be
classified as an association taxable as a corporation for United States federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Declaration, that each of the Depositor and any Administrative Trustee
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Preferred Securities.
SECTION 2.8. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Holders in accordance with this Declaration.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment
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Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Declaration. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds in respect of, the Debentures.
(c) Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions. (a) The Trust Securities represent
undivided beneficial interests in the Trust Property, and Distributions
(including of Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including Additional Interest)
are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from ____________, and, except to the extent that the Depositor
exercises its right to defer the payment of interest on the Debentures
in accordance with the Indenture, shall be payable semi-annually in
arrears on ________ and ___________ of each year, commencing on
____________. If any date on which a Distribution otherwise would be
payable on the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay), or, if such Business Day falls in the next calendar
year, on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming that payments of interest on the Debentures are
made when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of _____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period
shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year
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of twelve 30-day months. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date for such Distribution Date, which shall be one
Business Day prior to such Distribution Date; provided, however, that
in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date for a Distribution Date
shall be the date 15 days prior to such Distribution Date.
SECTION 4.2. Redemption. (a) On each Debenture Redemption Date
and upon the stated maturity of the Debentures, the Trust will be required to
redeem or pay off a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first- class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification, to the extent possible, and the
aggregate Liquidation Amount of the Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption Price in
respect of each such Trust Security to be redeemed will be due and that
Distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be due on each Redemption Date only
to the extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, so
long as the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price. If the Preferred Securities are no
longer in book- entry-only form, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent funds sufficient to pay
the applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, any Distribution the Distribution Date for which shall occur on or
prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Securities Register on the relevant record date for such Distribution Date. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders of Trust Securities so
called for redemption will cease with respect to such Trust Securities, except
the right of such Holders to receive the Redemption Price therefor and any
Distribution thereon the Distribution Date for which shall occur on or prior to
the Redemption Date, but without interest, and such Trust Securities will cease
to be Outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), or, if such
Business Day falls in the next calendar year, on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price for any Trust Securities
called for redemption is improperly withheld or refused and not paid either by
the Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price for Trust Securities shall
be made to the Holders thereof as they appear on the Securities Register on the
relevant record date for the Redemption Date, which shall be one Business Day
prior to such Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the relevant record
date for a Redemption Date shall be the date 15 days prior to such Redemption
Date.
(f) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated pro rata (based on Liquidation Amounts) among the Common Securities
and the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected pro rata (based upon Liquidation Amounts) not more than 60
days prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by such method
(including, without limitation, by lot) as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
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portions (equal to $________ or an integral multiple of $_____ in excess
thereof) of the Liquidation Amount of Preferred Securities of a denomination
larger than $_____. The Property Trustee shall promptly notify the Security
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration,
unless the context otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities. (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made, subject
to Section 4.2(f), pro rata (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due.
(b) In the event of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under this Declaration until the effect of all such Events of Default
with respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Declaration with respect
to the Preferred Securities has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
SECTION 4.4. Payment Procedures. Payments of Distributions
(including Additional Amounts, if applicable) in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to such Clearing Agency in immediately available funds, which shall credit
the relevant Persons' accounts at such Clearing Agency on the relevant
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Holder.
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SECTION 4.5. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense,
and file all United States federal, state and local tax and information returns
and reports required to be filed by or in respect of the Trust. In this regard,
the Administrative Trustees shall (a) prepare and file (or cause to be prepared
and filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Holder the appropriate
Internal Revenue Service Form required to be provided on such form. The
Administrative Trustees shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Holders under the Trust Securities.
SECTION 4.6. Payments under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or an
Owner with respect to the Holder's Preferred Securities) has directly received
pursuant to Section 508 of the Indenture or Section 5.14 of this Declaration.
SECTION 4.7. Liability of the Holder of Common Securities. The
Holder of the Common Securities shall be liable for the debts and obligations of
the Trust as set forth in the Expense Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the Trust
and the contribution by the Depositor pursuant to Section 2.3 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $_____
Liquidation Amount and integral multiples of $_____ in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $_____
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this
Declaration, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a
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Holder, and shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates. At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Depositor shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities Certificates and
transfers and exchanges of Preferred Securities Certificates (the "Securities
Register"), in which the registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided. The Bank shall be the
initial Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6 shall
apply to the Bank also in its role as Securities Registrar, for so long as the
Bank shall act as Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to an Administrative Trustee
and the Securities Registrar duly executed by the Holder or his attorney
duly authorized in writing. Each Preferred Securities Certificate surrendered
for registration of transfer or exchange shall be canceled and subsequently
disposed of by an Administrative Trustee or Securities Registrar in accordance
with such Person's customary practice.
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No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
The Property Trustee shall not be required to ensure or verify
compliance with securities laws, including the Securities Act, Exchange Act and
1940 Act, in connection with transfers and exchanges of Preferred Securities
Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate shall
be surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Holders. The Trustees or the
Securities Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, or any of the Trustees, accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
SECTION 5.8. Maintenance of Office or Agency. The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate Boston Scientific Corporation, One
Boston Scientific Place, Natick, Massachusetts 01760-1537, Attention: ________,
as its principal corporate trust office for such purposes. The
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Administrative Trustees shall give prompt written notice to the Depositor and to
the Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.9. Appointment of Paying Agent. The Paying Agent
shall make Distributions to Holders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the power to receive funds from the
Payment Account for the purpose of making the Distributions referred to above.
The Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Declaration in any material
respect. The Paying Agent shall initially be the Bank, and any co- paying agent
chosen by the Bank, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Bank shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 shall apply to the Bank also in its role as Paying
Agent, for so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor. At
the Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law,
other than a transfer to an Affiliate or in connection with a consolidation or
merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 801 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH
SECTION 5.10 OF THE DECLARATION (AS DEFINED BELOW)".
SECTION 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate. (a) The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing
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Book-Entry Preferred Securities Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner's interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:
(i) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Declaration relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities and shall have no obligations to the Owners thereof;
(ii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Declaration, the provisions
of this Section 5.11 shall control; and
(iii) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that a
notice or other communication to the Holders is required under this Declaration,
unless and until Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustees shall give all such
notices and communications specified herein to be given to Holders to the
Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates. If
(a) the Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates, and the Depositor is unable to locate
a qualified successor, (b) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency or (c) there shall have occurred and be continuing an Event of Default,
then an Administrative Trustee shall
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notify the Clearing Agency and the Clearing Agency shall notify all Owners of
Book-Entry Preferred Securities Securities Certificates and the other Trustees
of the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee or
Securities Registrar of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Holders. The Definitive Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
SECTION 5.14. Rights of Holders. (a) The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.9, and the Holders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration.
The Trust Securities shall have no preemptive or similar rights. When issued and
delivered to Holders of Preferred Securities against payment of the purchase
price therefor, the Preferred Securities will be fully paid and nonassessable
undivided beneficial interests in the Trust Property. The Holders, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in aggregate principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures to
be immediately due, the Holders of at least 25% in aggregate Liquidation Amount
of the Preferred Securities then Outstanding shall have such right by a notice
in writing to the Depositor and the Debenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures shall become immediately due, provided that the payment of principal
and interest on such Debentures shall remain subordinated to the extent provided
in the Indenture.
At any time after such a declaration of acceleration with
respect to the Debentures has been made and before a judgment or decree for
payment of the money due has been obtained by the Debenture Trustee as in the
Indenture provided, the Holders of at least a majority in aggregate Liquidation
Amount of the Preferred Securities, by written notice to the Property Trustee,
the
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Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest) on all of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 513 of the Indenture.
The Holders of at least a majority in aggregate Liquidation
Amount of the Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of Preferred Securities all or part of which is represented by Book-Entry
Preferred Securities Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
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acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Declaration and the Indenture, upon a Debenture Event of Default specified
in Section 501.1 or 501.2 of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
pursuant to Section 508 of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on Debentures having a principal
amount equal to the Liquidation Amount of the Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.14(b) and this
Section 5.14(c), Holders of Preferred Securities shall have no right to exercise
directly any right or remedy available to holders of, or in respect of,
Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as
provided in this Section 6.1, in Sections 5.14, 8.10 and 10.2 and in the
Indenture, and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method or place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures, (ii) waive any past default which is waivable under Section 513
of the Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of Holders of Preferred Securities, prior
to taking any of the foregoing actions, the Trustees shall, at the expense of
the Depositor, obtain an Opinion of Counsel experienced in such
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matters to the effect that such action shall not cause the Trust to be
classified as an association taxable as a corporation for United States federal
income tax purposes.
(c) If any proposed amendment to the Declaration provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Declaration, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Declaration, no amendment to this Declaration may be made if,
as a result of such amendment, it would cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax
purposes.
SECTION 6.2. Notice of Meetings. Notice of all meetings of
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each
such Holder at such Holder's address as it appears in the Securities Register as
of the record date for such meeting. Such notice shall be sent, first-class
mail, at least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
SECTION 6.3. Meetings of Holders of Preferred Securities. No
annual meeting of Holders is required to be held. The Administrative Trustees,
however, shall call a meeting of Holders of Preferred Securities to vote on any
matter upon the written request of the Holders of record of at least 25% of the
aggregate Liquidation Amount of Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on any
matters as to which Holders of Preferred Securities are entitled to vote.
Holders of at least 50% of the Liquidation Amount of Outstanding Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of Holders of Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by
the Holders of record present, in person or by proxy, holding at least a
majority of the Liquidation Amount of Outstanding Preferred Securities held by
the Holders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of Preferred Securities, unless this
Declaration requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights. In respect of any matter as to
which a Holder is entitled to vote, such Holder shall be entitled to one vote
for each $____ of Liquidation Amount Trust Securities held of record by such
Holder.
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SECTION 6.5. Proxies, etc. At any meeting of Holders, any
Holder entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Holders of record shall be entitled to
vote. When Trust Securities are held jointly by several Persons, any one of them
may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent. Any action
which may be taken by Holders at a meeting may be taken without a meeting if
Holders holding a majority of the aggregate Liquidation Amount of the
Outstanding Trust Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision of this
Declaration) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For
the purpose of determining the Holders who are entitled to notice of and to vote
at any meeting or by written consent, or to participate in any Distribution on
the Trust Securities in respect of which a record date is not otherwise provided
for in this Declaration, or for the purpose of any other action, the
Administrative Trustees or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration to be given, made or taken by Holders or Owners
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders or Owners in person or by an 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 an Administrative Trustee and the Property Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agentshall be sufficient for any purpose of this
Declaration and (subject to Section 8.1) conclusive in favor of the Trustees, if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by a certificate of a notary public
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or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders and the
Administrative Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee under this
Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records. Upon reasonable prior
written notice to the Administrative Trustees and the Property Trustee, the
records of the Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee,
each severally on behalf of and as to itself alone, hereby represents and
warrants for the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a national bank, duly organized,
validly existing and in good standing under the laws of the United
States;
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(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(c) the Delaware Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Delaware Trustee satisfies for the Trust Section 3807
of the Delaware Business Trust Act;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(e) this Declaration has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(f) execution, delivery and performance of this Declaration
has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and does not
require any approval of stockholders of the Property Trustee or the
Delaware Trustee and such execution, delivery and performance will not
(i) violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Property Trustee or the Delaware Trustee is a party or by which it is
bound, or (iii) violate any law, governmental rule or regulation of the
United States or the State of Delaware, as the case may be, governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Declaration nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of
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Delaware (other than the filing of appropriate certificates in
accordance with the Delaware Business Trust Act); and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware
Trustee, as the case may be, to enter into or perform its obligations
as one of the Trustees under this Declaration.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Holders that the
Trust Securities Certificates issued on the Closing Date by the Trust have been
duly authorized and will have been, duly and validly executed, issued and
delivered by an Administrative Trustee pursuant to the terms and provisions of,
and in accordance with the requirements of, this Declaration and the Holders
will be, as of each such date, entitled to the benefits of this Declaration.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Trustees shall be as expressly provided by
this Declaration and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Declaration
shall require the Trustees to expend or risk their own funds or otherwise to
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers, if they shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.1.
(b) No provision in this Declaration shall be construed to
release an Administrative Trustee from liability for his own grossly negligent
action, his own grossly negligent failure to act, or his own willful misconduct.
To the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) to the Trust or to the Holders, and liabilities
relating thereto, such Administrative Trustee shall not be liable to the Trust
or to any Holder for such Trustee's good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the Holders to
replace such other duties and liabilities of the Administrative Trustees.
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(c) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(c) does not limit the liability of the Trustees expressly set forth
elsewhere in this Declaration or, in the case of the Property Trustee, in the
Trust Indenture Act.
(d) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Declaration, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
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SECTION 8.2. Certain Notices. Within five Business Days after
the occurrence of any Event of Default actually known to a Responsible Officer
of the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.8, notice of such Event of Default to the
Holders, the Administrative Trustees and the Depositor, unless such Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, written notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
SECTION 8.3. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Declaration
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Preferred Holders are entitled
to vote under the terms of this Declaration, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or to
refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to
the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Declaration as it shall deem
advisable and in the best interests of the Holders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
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(d) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice, such counsel may
be counsel to the Depositor or any of its Affiliates, and may include
any of its employees; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any of the Holders pursuant to this
Declaration, unless such Holders shall have offered to the Property
Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, attorneys, custodians or nominees provided that
the Property Trustee shall not be responsible for any misconduct or
negligence or recklessness on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(j) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the
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same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty. The Delaware Trustee shall have the same rights
and benefits as the Property Trustee under this paragraph and paragraphs (a)
through (k) of this Section.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
SECTION 8.5. May Hold Securities. Any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13 and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Trust with the same rights it would have
if it were not a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor
agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (or gross negligence with
respect to the Administrative Trustees) or bad faith; and
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(c) to the fullest extent permitted by applicable law, to
indemnify, defend and hold harmless (i) each Trustee in its individual
capacity, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or
nature whatsoever incurred by such Indemnified Person by reason of or
in connection with the creation, existence, operation or termination of
the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration,
except that no Indemnified Person shall be entitled to be indemnified
pursuant to this Section 8.6 in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence (or gross
negligence with respect to the Administrative Trustees) or willful
misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Declaration.
No Trustee may claim any Lien or charge on any Trust Property
(except for funds not held in trust for the payment of principal of, or premium
if any, or interest on particular securities or any coupons) as a result of any
amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property
Trustee, subject to Section 8.8) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Trust Securities shall have no rights by virtue of this Declaration
in and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the Trust, shall not be deemed wrongful or improper. Neither the Depositor, nor
any Trustee, shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and the Depositor or any
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Trustee may engage or be interested in any financial
or other transaction with the Depositor or any Affiliate of the Depositor, or
may act as depository for, trustee or agent for, or act on any committee or body
of holders of, securities or other obligations of the Depositor or its
Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility
of Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition
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so published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements under the Delaware
Business Trust Act that the Trust have a trustee in the State of Delaware, as
the same now exists or as may hereafter be amended, and that shall act through
one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests. If the Property Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Declaration.
SECTION 8.9. Co-Trustees and Separate Trustee. Unless an Event
of Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event of
Default shall have occurred and be continuing, the Property Trustee alone shall
have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such
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property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder shall be exercised solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act or omission of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
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SECTION 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the Holders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common Holder.
If a Debenture Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Common Holder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Holder, by Act of the Common Holder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Holders, by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture Event
of Default shall have occurred and be continuing, the Common Holder by Act of
the Common Holder delivered to the Administrative Trustee shall promptly appoint
a successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Holder or the Preferred Holders and accepted appointment in the
manner required by Section 8.11, any Holder who has been a Holder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in
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Section 10.8 and shall give notice to the Depositor. Each notice shall include
the name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (b) shall add to or change any of the provisions of this
Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees. Upon the execution and delivery of such
amendment, the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee and upon payment in
full of all undisputed amounts then due and owing to such retiring Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee
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hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Trust. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent
to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.14. Reports by Property Trustee. Within 60 days
after ________ of each year commencing with the first _________ after the first
issuance of Trust Securities pursuant to this Declaration, the Trustee shall
transmit by mail to all Holders of Trust Securities as provided in Section
313(c) of the Trust Indenture Act a brief report dated as of such ________ if
and to the extent required by Section 313(a) of the Trust Indenture Act.
SECTION 8.15. Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents,
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reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. Number of Trustees. (a) The number of Trustees
shall be five, provided that the Holder of all the Outstanding Common Securities
by written instrument may increase or decrease the number of Administrative
Trustees. The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Administrative Trustees shall occur, until
such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Declaration.
SECTION 8.18. Delegation of Power. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a), including making any
governmental filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Declaration, as set forth
herein.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve 45 years from the Closing Date
(the "Expiration Date").
SECTION 9.2. Early Termination. The Trust shall dissolve upon
the first to occur of any of the following events (an "Early Termination
Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Holder of the Common Securities;
(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, distribute Debentures to Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the
discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust shall terminate upon the latest
to occur of the following:
(a) the distribution by the Property Trustee to Holders upon
the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final payment
of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Holders.
SECTION 9.4. Liquidation. (a) If an Early Termination Event
specified in clause (a), (b) or (d) of Section 9.2 occurs, or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Holder a Like Amount
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of Debentures, subject to Section 9.4(d). Notice of liquidation shall be given
by the Property Trustee by first-class mail, postage prepaid mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Unless Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and the distribution of Debentures to
Holders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Unless Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self- regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, then the Trust
Property shall be liquidated, and the Trust shall be wound up by the Property
Trustee in such manner as the Property Trustee determines subject to applicable
law. In such event,
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on the date of the dissolution of the Trust, Holders will be entitled to receive
out of the assets of the Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid pro rata based upon
Liquidation Amounts. The Holder of the Outstanding Common Securities will be
entitled to receive Liquidation Distributions upon any such liquidation pro
rata, based upon Liquidation Amount, with Holders of Preferred Securities,
except that, if any Debenture Event of Default shall have occurred and be
continuing at the time of payment of the Liquidation Distribution, the Preferred
Securities shall have a priority over the Common Securities with respect to
payment of any amount of Liquidation Distribution.
(e) Following the Expiration Date or an Early Termination
Event and after the completion of the winding up of the affairs of the Trust
pursuant to this Section 9.4, one of the Trustees shall file a certificate of
cancellation with the Delaware Secretary of State.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Article IX. At the request of the Holder of the Common Securities, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Preferred Securities, the Property Trustee or the Delaware Trustee, the
Trust may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any State; provided, that (i)
such successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities ("Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement,
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conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of all Outstanding Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor Person to
be classified as an association taxable as a corporation for United States
federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders. The death or
incapacity, or the dissolution, liquidation, termination, or the bankruptcy of
any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Declaration or dissolve, terminate or annul
the Trust, nor entitle the legal representatives, successors or heirs of such
person or any Holder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment. (a) This Declaration may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Holder of the Common Securities, without the consent of any Holders, (i) to cure
any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Declaration, which shall
not be inconsistent with the other provisions of this Declaration, or (ii) to
modify, eliminate or add to any provisions of this Declaration to such extent as
shall be necessary to ensure that the Trust will not be classified for United
States federal income tax purposes as an association taxable as a corporation at
any times that any Trust Securities are outstanding or to ensure that the Trust
will not be required to register as an investment company under the 1940 Act;
provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Holder, and any
such amendments of this Declaration shall become effective when notice thereof
is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Declaration may be amended by the Trustees and the Holder of
the Common Securities with (i) the consent of Holders representing not less than
a majority Liquidation Amount of the Outstanding Trust
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Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not cause the Trust to be classified as
an association taxable as a corporation for United States federal income tax
purposes or affect the Trust's exemption from status of an investment company
under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Declaration, without the consent of each affected Holder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Declaration
may not be amended to (i) change the amount or timing of any Distribution or
otherwise adversely affect the amount of any Distribution required to be made as
of a specified date or (ii) restrict the right of a Holder to institute suit for
the enforcement of any such payment on or after such date; notwithstanding any
other provision herein, without the unanimous consent of the Holders (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration,
no Trustee shall enter into or consent to any amendment to this Declaration
which would cause the Trust to be classified as an association taxable as a
corporation for United States federal income tax purposes or fail or cease to
qualify for the exemption from status of an investment company under the 1940
Act.
(e) Notwithstanding anything in this Declaration to the
contrary, without the consent of the Depositor, this Declaration may not be
amended in a manner which imposes any additional obligation or liability on the
Depositor.
(f) If any amendment to this Declaration is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Declaration which affects
its own rights, duties or immunities under this Declaration. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Declaration is in compliance with
this Declaration.
SECTION 10.3. Separability. If any provision in this
Declaration or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. Governing Law. THIS DECLARATION AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR AND THE
TRUSTEES WITH RESPECT TO THIS DECLARATION AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
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SECTION 10.5. Payments Due on Non-Business Day. If the date
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day (except as otherwise provided in
Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on
the date fixed for such payment, and no interest shall accrue thereon for the
period after such date.
SECTION 10.6. Successors. This Declaration shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or the Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder (any purported assignment
in contravention of this Section 10.6 being null and void).
SECTION 10.7. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Declaration.
SECTION 10.8. Reports, Notices and Demands. Any report,
notice, demand or other communication which by any provision of this Declaration
is required or permitted to be given or served to or upon any Holder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Common Holder or the Depositor,
to Boston Scientific Corporation, One Boston Scientific Place, Natick,
Massachusetts 01760-1537, Attention: General Counsel, facsimile number: (508)
650-8960. Such notice, demand or other communication to or upon a Holder shall
be deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Declaration is required or permitted to be given or served to
or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to ________; (b) with respect to the Delaware Trustee, to The Chase
Manhattan Bank Delaware, 1201 North Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration; (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of BSC Capital Trust"; and
(d) with respect to the Trust to Boston Scientific Corporation, One Boston
Scientific Place, Natick, Massachusetts 01760-1537, Attention: General Counsel.
Such notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees
and the Depositor agree for the benefit of the Holders that, until at least one
year and one day after the Trust has been
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terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration.
SECTION 10.10. Application of Trust Indenture Act. (a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Declaration by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Declaration modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Declaration as
so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee
and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
<PAGE>
[Signatures on Next Page]
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IN WITNESS WHEREOF, the undersigned have executed this Amended
and Restated Declaration as of the date first above written.
BOSTON SCIENTIFIC CORPORATION,
as Depositor
By: __________________________________
Name:
Title:
[PROPERTY TRUSTEE], as Property Trustee
By: __________________________________
Name:
Title:
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: __________________________________
Name:
Title:
By: __________________________________
________, as Administrative Trustee
By: __________________________________
________, as Administrative Trustee
By: __________________________________
________, as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST OF
BSC CAPITAL TRUST
The undersigned Trustees of BSC Capital Trust (the "Trust"),
pursuant to the Delaware Business Trust Act (12 Del.C. ss.3801, et seq.), HEREBY
CERTIFY:
1. Name. The name of the business trust formed hereby is BSC
Capital Trust.
2. Delaware Trustee. The name and business address of the
Delaware Trustee of the Trust in the State of Delaware is Chase Manhattan Bank
Delaware, 1201 North Market Street, Wilmington, New Castle County, Delaware
19801, Attn: Corporate Trust Administration.
IN WITNESS WHEREOF, the undersigned being all of the Trustees
of the Trust, have executed this Certificate of Trust as of the 25th day of
September, 1998
DELAWARE TRUSTEE:
Chase Manhattan Bank Delaware
By: /s/ Denis Kelly
-------------------------
Name: Denis Kelly
Title: Trust Office
TRUSTEE
/s/ Paul W. Sandman
-----------------------------
Name: Paul W. Sandman
TRUSTEE
/s/ Janet M. Kelly
-----------------------------
Name: Janet M. Kelly
<PAGE>
EXHIBIT B
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099
Attention: General Counsel's Office
Re: BSC Capital Trust ____% Cumulative Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the BSC Capital Trust ____% Cumulative Trust Preferred Securities (the
"Preferred Securities"), of BSC Capital Trust, a Delaware business trust (the
"Issuer"), created and continued pursuant to an Amended and Restated Declaration
of Trust between BOSTON SCIENTIFIC CORPORATION. ("Boston Scientific"), ________,
as Property Trustee, The Chase Manhattan Bank Delaware, as Delaware Trustee, the
Administrative Trustees named therein and the holders, from time to time, of
undivided beneficial interests in the assets of the trust. The payment of
distributions on the Preferred Securities, and payments due upon liquidation of
Issuer or redemption of the Preferred Securities, to the extent the Issuer has
funds available for the payment thereof are guaranteed by Boston Scientific to
the extent set forth in a Guarantee Agreement dated ____________, ____ by Boston
Scientific with respect to the Preferred Securities. Boston Scientific and the
Issuer propose to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated __________, ____ by
and among the Underwriters, the Issuer and Boston Scientific dated
______________, ____ and the Underwriters wish to take delivery of the Preferred
Securities through DTC. _____________ is acting as transfer agent and registrar
with respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters, which is expected to occur on or about
__________ __, ____, there shall be deposited with DTC one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's Preferred Securities nominee, Cede & Co.,
representing an aggregate of ____________ Preferred Securities and bearing the
following legend:
<PAGE>
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange,
or payment, and any certificate issued is registered in the name of
Cede & Co. or in 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.
2. The Amended and Restated Declaration of Trust provides for
the voting by holders of the Preferred Securities under certain limited
circumstances (with no provision for revocation of consents or votes by
subsequent holders). The Issuer shall establish a record date for such purposes
and shall, to the extent possible, give DTC notice of such record date not less
than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event
at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance
of rights with respect to, the Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the
amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission of multiple CUSIP numbers (if applicable) that includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
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Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "BSC Capital Trust ____% Cumulative Trust Preferred Securities."
3
<PAGE>
8. Distribution payments or other cash payments that are part
of periodic payments with respect to the Preferred Securities evidenced by the
Global Certificate shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same-day funds no later than 2:30 p.m. (Eastern Time) on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Absent any other
arrangements between the Issuer or the Transfer Agent and Registrar and DTC,
such funds shall be wired as follows:
------------
------------
The Issuer or the Transfer Agent and Registrar shall provide
payment information to a standard announcement service subscribed to by DTC. In
the unlikely event that no such service exists, the Issuer agrees that it or the
Transfer Agent and Registrar shall provide this information directly to DTC in
advance of the record date as soon as the information is available. This
information should be conveyed directly to DTC electronically. If electronic
transmission is not available, absent any other arrangements between the
Transfer Agent and DTC, such information should be sent by telecopy to DTC's
Dividend Department at (212) 709-1723 or (212) 709-1686, and receipt of such
notices shall be confirmed by telephoning (212) 709-1270. Notices to DTC
pursuant to the above by mail or by any other means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
9. DTC shall receive maturity and redemption payments with
respect to the Preferred Securities evidenced by the Global Certificate
allocated with respect to each CUSIP number on the payable date in same-day
funds by 2:30 p.m. (Eastern Time). Absent any other arrangements between the
Transfer Agent and Registrar and DTC, such payments shall be wired as follows:
------------
------------
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS Paying Agent Operating Procedures, a copy of which has previously
been furnished to the Transfer Agent and Registrar.
10. DTC shall receive all reorganization payments and
CUSIP-level detail resulting from corporate actions (such as tender offers,
remarketings, or mergers) on the first payable
4
<PAGE>
date in same-day funds by 2:30 p.m. (Eastern Time). Absent any other
arrangements between the Transfer Agent and Registrar and DTC, such payments
shall be wired as follows:
------------
------------
11. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
12. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
13. DTC may discontinue its services as a securities
depository with respect to the Preferred Securities at any time by giving
reasonable notice to the Issuer and the Transfer Agent and Registrar (at which
time DTC will confirm with the Issuer or the Transfer Agent and Registrar the
aggregate number of Preferred Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
14. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
5
<PAGE>
15. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of BSC Capital Trust.
Very truly yours,
BSC CAPITAL TRUST, as Issuer
By: ______________________________
Name:_____________________________
Administrative Trustee
__________________________________
as Trustee, Transfer Agent and Registrar
By: ______________________________
Name:_____________________________
Title:____________________________
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: ________________________
Authorized Officer
6
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
OTHER THAN IN ACCORDANCE WITH SECTION 5.10
------------------------------------
OF THE DECLARATION (AS DEFINED BELOW)
------------------------------------
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 [_________________]
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BSC CAPITAL TRUST
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $_________ PER COMMON SECURITY)
BSC CAPITAL TRUST, a business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that BOSTON SCIENTIFIC
CORPORATION, a Delaware corporation (the "Holder"), is the registered owner of (
) common securities of the Trust, representing beneficial interests of the Trust
and designated the ____% Common Securities (Liquidation Amount $_____ per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of the
Declaration (as defined below) the Common Securities are not transferable and
any attempted transfer hereof shall be null and void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of the Trust,
dated as of _______________, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth therein. The Trust will furnish a copy of the Declaration to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER
AGREES TO BE BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS
THEREUNDER.
<PAGE>
IN WITNESS WHEREOF, the undersigned Administrative Trustee of
the Trust has executed this certificate as of _____________________.
BSC CAPITAL TRUST
By:____________________________
Name:__________________________
Administrative Trustee
2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
------------------------------------
AGREEMENT, dated as of _________________, between BOSTON
SCIENTIFIC CORPORATION, a Delaware corporation (the "Corporation"), and BSC
CAPITAL TRUST, a Delaware business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from the Corporation and to issue
and sell ____% Cumulative Trust Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Declaration of the Trust, dated as
of ___________, as the same may be amended from time to time (the
"Declaration"); and
WHEREAS, the Corporation will directly or indirectly own all
of the Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Corporation hereby agrees
shall benefit the Corporation and which purchase the Corporation acknowledges
will be made in reliance upon the execution and delivery of this Agreement, the
Corporation and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation.
Subject to the terms and conditions hereof, the Corporation
hereby irrevocably and unconditionally guarantees to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any costs, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of the
Preferred Securities or such other similar interests, as the case may be. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force or
effect upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid in respect of the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof between the Corporation and
________, as guarantee trustee or under this Agreement for any reason
whatsoever.
This Agreement shall be continuing, irrevocable, unconditional
and absolute.
SECTION 1.3. Waiver of Notice.
The Corporation hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and the
Corporation hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of the
Corporation under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust. There shall be
no obligation of the Beneficiaries to give notice to, or obtain the
consent of, the Corporation with respect to the happening of any of the
foregoing.
2
<PAGE>
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against the
Corporation and the Corporation waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against the Corporation.
SECTION 1.6. Subrogation.
The Corporation shall be subrogated to all (if any) rights of
the Trust in respect of any amounts paid to the Beneficiaries by the Corporation
under this Agreement; provided, however, that the Corporation shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
This Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Corporation and shall inure to the benefit
of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there shall remain any Beneficiary or any Preferred
Securities of any series shall be outstanding, this Agreement may not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Preferred Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex):
3
<PAGE>
BSC CAPITAL TRUST
c/o BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Facsimile No.: (580) 650-8960
Attention: General Counsel
BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Facsimile No.: (580) 650-8960
Attention: General Counsel
SECTION 2.4. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
BOSTON SCIENTIFIC CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
BSC CAPITAL TRUST
By:_____________________________
Name:___________________________
Administrative Trustee
4
<PAGE>
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT--This Preferred Security is a Global Certificate (as may be defined in
the Declaration hereinafter referred to or in the Amended and Restated
Declaration of Trust, as may be amended from time to time) and is registered in
the name of The Depository Trust Company (the "Depository") or a nominee of the
Depository. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Declaration and no transfer of
this Preferred Security (other than a transfer of this Preferred Security as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
BSC Capital Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P- [___________]
CUSIP NO.____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BSC CAPITAL TRUST
____% CUMULATIVE TRUST PREFERRED CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $________ PER PREFERRED SECURITY)
BSC Capital Trust, a business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ___________________
(the "Holder") is the registered owner of (______) preferred securities of the
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the BSC Capital Trust ____% Cumulative Trust Preferred Securities
(Liquidation Amount $_____ per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized
<PAGE>
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.4 of the Declaration (as defined below).
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of the Trust, dated as of _______________, as the same may
be amended from time to time, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of Preferred Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by BOSTON SCIENTIFIC CORPORATION, a Delaware corporation,
and________, as guarantee trustee, dated as of _____________ (the "Guarantee"),
to the extent provided therein. The Trust will furnish a copy of the Declaration
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER
AGREES TO BE BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS
THEREUNDER.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of
the Trust has executed this certificate as of __________________.
BSC CAPITAL TRUST
By:__________________________
Name:________________________
Administrative Trustee
2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee) and irrevocably
appoints agent to transfer this Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:_________
Signature: _________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
EXHIBIT 4.15
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
among
BOSTON SCIENTIFIC CORPORATION
as Depositor,
[PROPERTY TRUSTEE],
as Property Trustee,
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
---------------
BSC CAPITAL TRUST II
---------------
Dated as of ___________, _____
<PAGE>
BSC CAPITAL TRUST II
Certain Sections of this Declaration relating to Sections 310 through
318 of the Trust Indenture Act of 1939:
[TO BE UPDATED]
Trust Indenture
---------------
Declaration Act Section Section
----------------------- -------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Declaration.
<PAGE>
TABLE OF CONTENTS
[To be updated]
Page
----
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation...................................................1
SECTION 1.2. Certain Definitions..............................................2
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name............................................................11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....11
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses..................................................11
SECTION 2.4. Issuance of the Preferred Securities............................11
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures....................................11
SECTION 2.6. Declaration of Trust............................................12
SECTION 2.7. Authorization to Enter into Certain Transactions................12
SECTION 2.8. Assets of Trust.................................................15
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.................................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions...................................................16
SECTION 4.2. Redemption......................................................17
SECTION 4.3. Subordination of Common Securities..............................19
SECTION 4.4. Payment Procedures..............................................20
SECTION 4.5. Tax Returns and Reports.........................................20
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.....................20
i
<PAGE>
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions..........20
SECTION 4.8. Liability of the Holder of Common Securities....................20
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...............................................20
SECTION 5.2. The Trust Securities Certificates...............................21
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.........21
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates...................................21
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..............................................22
SECTION 5.6. Persons Deemed Holders..........................................22
SECTION 5.7. Access to List of Holders' Names and Addresses..................23
SECTION 5.8. Maintenance of Office or Agency.................................23
SECTION 5.9. Appointment of Paying Agent.....................................23
SECTION 5.10. Ownership of Common Securities by Depositor....................24
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate....................................24
SECTION 5.12. Notices to Clearing Agency.....................................25
SECTION 5.13. Definitive Preferred Securities Certificates...................25
SECTION 5.14. Rights of Holders..............................................25
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights....................................27
SECTION 6.2. Notice of Meetings..............................................28
SECTION 6.3. Meetings of Holders of Preferred Securities.....................28
SECTION 6.4. Voting Rights...................................................29
SECTION 6.5. Proxies, etc....................................................29
SECTION 6.6. Holder Action by Written Consent................................29
SECTION 6.7. Record Date for Voting and Other Purposes.......................29
SECTION 6.8. Acts of Holders.................................................30
SECTION 6.9. Inspection of Records...........................................30
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee..................................31
ii
<PAGE>
SECTION 7.2. Representations and Warranties of Depositor.....................32
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.............................32
SECTION 8.2. Certain Notices.................................................34
SECTION 8.3. Certain Rights of Property Trustee..............................34
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........36
SECTION 8.5. May Hold Securities.............................................36
SECTION 8.6. Compensation; Indemnity; Fees...................................37
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees....38
SECTION 8.8. Conflicting Interests...........................................38
SECTION 8.9. Co-Trustees and Separate Trustee................................38
SECTION 8.10. Resignation and Removal; Appointment of Successor..............40
SECTION 8.11. Acceptance of Appointment by Successor.........................41
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business....42
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust...42
SECTION 8.14. Reports by Property Trustee....................................43
SECTION 8.15. Reports to the Property Trustee................................43
SECTION 8.16. Evidence of Compliance with Conditions Precedent...............43
SECTION 8.17. Number of Trustees.............................................43
SECTION 8.18. Delegation of Power............................................44
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date................................44
SECTION 9.2. Early Termination...............................................44
SECTION 9.3. Termination.....................................................44
SECTION 9.4. Liquidation.....................................................45
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust..............................................46
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders................................47
SECTION 10.2. Amendment......................................................48
SECTION 10.3. Separability...................................................49
SECTION 10.4. Governing Law..................................................49
iii
<PAGE>
SECTION 10.5. Payments Due on Non-Business Day...............................49
SECTION 10.6. Successors.....................................................49
SECTION 10.7. Headings.......................................................49
SECTION 10.8. Reports, Notices and Demands...................................49
SECTION 10.9. Agreement Not to Petition......................................50
SECTION 10.10. Application of Trust Indenture Act............................50
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee and Indenture...51
iv
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of __________,
_____ among (i) BOSTON SCIENTIFIC CORPORATION., a Delaware corporation
(including any successors or assigns, the "Depositor"), (ii) [PROPERTY TRUSTEE],
a ________ organized under the laws of ________, as property trustee, (in each
such capacity, the "Property Trustee" and, in its separate corporate capacity
and not in its capacity as Property Trustee, the "Bank"), (iii) THE CHASE
MANHATTAN BANK DELAWARE, a _________ organized under the laws of ________, as
Delaware trustee (the "Delaware Trustee"), (iv) ________, an individual,
________, an individual, and ________, an individual, each of whose address is
c/o Boston Scientific Corporation, One Boston Scientific Place, Natick,
Massachusetts 01760-1537 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees, collectively, the "Trustees") and (v) the several
HOLDERS, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Declaration of Trust, dated as of
September 29, 1998 (the "Original Declaration"), and by the execution and filing
by certain of the Trustees with the Secretary of State of the State of Delaware
of the Certificate of Trust, filed on September 29, 1998, attached as Exhibit A;
and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Declaration in its entirety as set forth herein to provide for, among
other things, (i) the issuance of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities by the Trust
pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust from
the Depositor of all of the right, title and interest in the Securities and (iv)
the appointment of the Property Trustee, the Delaware Trustee, and
Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates the Original
Declaration in its entirety and agrees as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation. For all purposes of this Declaration,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
1
<PAGE>
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Declaration; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration as a whole and not to any
particular Article, Section or other subdivision.
SECTION 1.2. Certain Definitions. For all purposes of this Declaration,
the following terms shall have the meanings assigned below:
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest paid
by the Depositor on a Like Amount of Debentures for such period.
"Additional Interest" means any interest on defaulted interested
payable pursuant to Section 3.07(a) of the Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Declaration, solely in such
Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or such Administrative Trustee's successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Trust shall not
be deemed an Affiliate of the Depositor. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Declaration.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar
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law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of such Person or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, or (ii) a certificate signed by the authorized
officer or officers of the Depositor to whom the Board of Directors or a
committee thereof has delegated its authority and, in each case, delivered to
the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than
(a) a Saturday or Sunday,
(b) a legal holiday or day on which banking institutions in the City of
New York are authorized or required by law, regulation or executive order to
remain closed, or
(c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Preferred Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
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"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency with respect to Preferred Securities
Certificates.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Declaration.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 of this Declaration such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Holder" means the holder of all or substantially all of the
Common Securities.
"Common Securities Certificate" means a certificate evidencing Common
Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $________ and having the rights
provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located at
________; Attention: ________, and (ii) when used with respect to the Debenture
Trustee, the principal office of the Debenture Trustee located in
____________.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
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"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, solely in its capacity as Debenture Trustee of the Debentures and
not in its individual capacity and any successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's
___% ____________________________, issued pursuant to the Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Declaration and any such modification, amendment or supplement,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Declaration and any such modification, amendment or supplement,
respectively.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates representing
Book-Entry Preferred Securities Certificates as provided in Section 5.11(a) and
(b) Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Declaration, solely in its capacity as Delaware
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
"Depositor" has the meaning specified in the preamble to this
Declaration.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (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) the occurrence of a Debenture Event of Default; or
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(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Declaration (other than a
covenant or warranty a default in the performance or breach of which is
described in clause (b) or (c) above) and continuation of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the defaulting Trustee or Trustees by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time and the rules and regulations promulgated thereunder by the
Commission.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and ________, as trustee, contemporaneously with the execution and
delivery of this Declaration, for the benefit of the holders of the Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that for purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Declaration, so long as Definitive Preferred Securities Certificates
have not been issued as provided in Section 5.13, the term "Holders" shall refer
to the Owners.
"Indenture" means the Subordinated Debt Securities Indenture, dated as
of _______________, _____ between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
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"Investment Company Event" means the receipt by the Trust of an opinion
of counsel to the Depositor experienced in such matters (which may be counsel to
the Depositor) to the effect that, as a result of the occurrence of a change in
law or regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of the issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Debentures to
Holders in connection with a dissolution or liquidation of the Trust, Debentures
having a principal amount equal to the aggregate Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed. "Liquidation
Amount" means the stated amount of $________ per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or accounting officer
of the Depositor. Any Officers' Certificate delivered with respect to compliance
with a covenant or condition provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
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(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor and who shall be
reasonably acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the recitals to
this Declaration.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Declaration, except:
(a) Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for the payment or redemption of which money in
the necessary amount theretofore has been deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Declaration;
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided, however, that in
determining whether the Holders of the requisite aggregate Liquidation
Amount of Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities that a
Responsible Officer of such Trustee actually knows to be so owned shall be
so disregarded; and
(d) the foregoing shall not apply at any time when all the outstanding
Preferred Securities are owned by the Depositor, one or more of the Trustees
and/or any such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the
pledgee is not the Depositor or any Affiliate of the Depositor.
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"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Holders in which all amounts paid in respect
of the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Holders in accordance with Sections 4.1
and 4.2.
"Person" means any individual, corporation, association partnership,
joint venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $______ and having the
rights provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
Preferred Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Declaration, solely in its capacity as Property
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for redemption thereof; provided that each Debenture
Redemption Date and the stated maturity of the Debentures shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount thereof, plus accumulated and unpaid Distributions to the
Redemption Date, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures,
allocated pro rata (based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Responsible Officer" shall mean when used with respect to the Property
Trustee any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Trust" means the Delaware business trust heretofore created, and
continued hereby, and identified on the cover page to this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Declaration is executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the Trust
under the Expense Agreement, (c) any cash on deposit in, or owing to, the
Payment Account and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Declaration.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee, and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
____________, _____, among the Trust, the Depositor and the several underwriters
named therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as "BSC
Capital Trust II", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees
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may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business. The name and address of the Delaware Trustee, with a principal place
of business in the State of Delaware, is The Chase Manhattan Bank Delaware, 1201
North Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders and the Depositor. The
principal executive office of the Trust is in care of Boston Scientific
Corporation, One Boston Scientific Place, Natick, Massachusetts 01760-1537.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Declaration of the sum of $10, which constituted
the initial Trust Property. The Depositor shall pay organizational expenses of
the Trust as they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such expenses paid by such Trustee. The Depositor
shall make no claim upon the Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. The Depositor, on
behalf of the Trust and pursuant to the Original Declaration, executed and
delivered the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Declaration, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Underwriters
named in the Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency,
representing ________ Preferred Securities, having an aggregate Liquidation
Amount of $________ against receipt of the aggregate purchase price of such
Preferred Securities of $_________ which amount such Administrative Trustee
shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures. Contemporaneously with the execution and delivery of
this Declaration, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, representing
______ Common Securities, having an aggregate Liquidation Amount of $________,
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal amount of
$____________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $____________ (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first
sentence of this Section 2.5).
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SECTION 2.6. Declaration of Trust. The exclusive purposes and functions
of the Trust are (a) to issue and sell Trust Securities and to use the proceeds
from such sale to acquire Debentures, and (b) to engage in those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, each to have all the rights, powers and
duties of such Trustee set forth herein, and the Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Holders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. Notwithstanding
anything in this Declaration to the contrary, the Delaware Trustee shall not be
entitled to exercise any powers or authority (except to the extent required
under the Delaware Business Trust Act), nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Trustees collectively, the Property
Trustee or the Administrative Trustees set forth herein. Notwithstanding any
provision to the contrary in this Declaration or elsewhere, the Delaware Trustee
shall be one of the trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807(a) of the Delaware Business Trust
Act and (except for such duties of the Delaware Trustee as may be expressly set
forth herein) the Delaware Trustee (both as such and in its individual capacity)
shall have no duties or liabilities to any Person under this Declaration or
otherwise in respect of or in connection with the Trust, the Trust Securities,
or its serving as a trustee of the Trust.
SECTION 2.7. Authorization to Enter into Certain Transactions. (a) The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Declaration. Subject to the limitations set forth in Section 2.7(b), and in
accordance with the following clauses (i) and (ii), the Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Declaration, and to perform all
acts in furtherance thereof, including without limitation the following:
(i) As among the Trustees, each Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Declaration
as a trust indenture under the Trust Indenture Act;
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(D) assisting in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Exchange Act, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Holders in accordance with this Declaration;
(F) the appointment of a Paying Agent and Securities Registrar in
accordance with this Declaration;
(G) registering transfer of the Trust Securities in accordance
with this Declaration;
(H) to the extent provided in this Declaration, the winding up of
the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise required by the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Declaration; and
(J) the taking of any action incidental or convenient to the
foregoing as the Administrative Trustees may from time to time
determine is necessary or advisable to give effect to the terms of this
Declaration for the benefit of the Holders (without consideration of
the effect of any such action on any particular Holder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to
the Holders in respect of the Trust Securities;
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(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Declaration;
(G) the distribution of the Trust Property in accordance with the
terms of this Declaration;
(H) to the extent provided in this Declaration, the winding up of
the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental or convenient to the foregoing as the Property
Trustee may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration and protect and conserve
the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder); and
(J) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in Section
2.7(a)(i).
(b) So long as this Declaration remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Declaration, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would cause the Trust to become
taxable as a corporation for United States federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt or (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property. The Administrative Trustees shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Holders in their capacity as
Holders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Declaration are hereby ratified and confirmed in all respects): (i) the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration
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statement on the appropriate form in relation to the Preferred Securities,
including any amendments thereto; (ii) the determination of the States in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to the
Trustees of actions they must take on behalf of the Trust, and the preparation
for execution and filing of any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States; (iii) the
preparation for filing by the Trust and execution on behalf of the Trust of an
application to the New York Stock Exchange or any other national stock exchange
or the Nasdaq National Market for listing, upon notice of issuance, of any
Preferred Securities; (iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration statement
on Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the
Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or to be classified as an
association taxable as a corporation for United States federal income tax
purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration,
that each of the Depositor and any Administrative Trustee determines in its
discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the
Holders of the Preferred Securities.
SECTION 2.8. Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Holders in accordance with this Declaration.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the Closing Date, the
Property Trustee shall establish the Payment Account. The Property Trustee and
any agent of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment
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Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Declaration. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds in respect of, the Debentures.
(c) Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions. (a) The Trust Securities represent
undivided beneficial interests in the Trust Property, and Distributions
(including of Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including Additional Interest)
are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall
accrue from ____________, and, except to the extent that the Depositor
exercises its right to defer the payment of interest on the Debentures
in accordance with the Indenture, shall be payable semi-annually in
arrears on ________ and ___________ of each year, commencing on
____________. If any date on which a Distribution otherwise would be
payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay), or, if such Business Day falls in the next
calendar year, on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date (each
date on which Distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
(ii) Assuming that payments of interest on the Debentures are
made when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of _____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period
shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year
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of twelve 30-day months. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of
such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date for such Distribution Date, which shall be one
Business Day prior to such Distribution Date; provided, however, that
in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date for a Distribution Date
shall be the date 15 days prior to such Distribution Date.
SECTION 4.2. Redemption. (a) On each Debenture Redemption Date and upon
the stated maturity of the Debentures, the Trust will be required to redeem or
pay off a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first- class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification, to the extent possible, and the
aggregate Liquidation Amount of the Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption Price in
respect of each such Trust Security to be redeemed will be due and
that Distributions thereon will cease to accrue on and after said
date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be due on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price. If the Preferred Securities are no longer in
book- entry-only form, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof upon surrender of
their Preferred Securities Certificates. Notwithstanding the foregoing, any
Distribution the Distribution Date for which shall occur on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record date for such Distribution Date. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Holders of Trust Securities so called for
redemption will cease with respect to such Trust Securities, except the right of
such Holders to receive the Redemption Price therefor and any Distribution
thereon the Distribution Date for which shall occur on or prior to the
Redemption Date, but without interest, and such Trust Securities will cease to
be Outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), or, if such
Business Day falls in the next calendar year, on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price for any Trust Securities
called for redemption is improperly withheld or refused and not paid either by
the Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price for Trust Securities shall be made
to the Holders thereof as they appear on the Securities Register on the relevant
record date for the Redemption Date, which shall be one Business Day prior to
such Redemption Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date for a
Redemption Date shall be the date 15 days prior to such Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata (based on Liquidation Amounts) among the Common Securities and the
Preferred Securities. The particular Preferred Securities to be redeemed shall
be selected pro rata (based upon Liquidation Amounts) not more than 60 days
prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by such method
(including, without limitation, by lot) as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to
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$________ or an integral multiple of $_____ in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $_____.
The Property Trustee shall promptly notify the Security Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the Liquidation Amount of Preferred
Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities. (a) Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made, subject
to Section 4.2(f), pro rata (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due.
(b) In the event of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Declaration until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Declaration with respect
to the Preferred Securities has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
SECTION 4.4. Payment Procedures. Payments of Distributions (including
Additional Amounts, if applicable) in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to such Clearing
Agency in immediately available funds, which shall credit the relevant Persons'
accounts at such Clearing Agency on the relevant Distribution Dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Common Holder.
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SECTION 4.5. Tax Returns and Reports. The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Holder the appropriate
Internal Revenue Service Form required to be provided on such form. The
Administrative Trustees shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Holders under the Trust Securities.
SECTION 4.6. Payments under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or an
Owner with respect to the Holder's Preferred Securities) has directly received
pursuant to Section 508 of the Indenture or Section 5.14 of this Declaration.
SECTION 4.7. Liability of the Holder of Common Securities. The Holder
of the Common Securities shall be liable for the debts and obligations of the
Trust as set forth in the Expense Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the Trust and the
contribution by the Depositor pursuant to Section 2.3 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
Outstanding, the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $_____
Liquidation Amount and integral multiples of $_____ in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $_____
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this
Declaration, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a
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Holder, and shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Trust and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, its president, any
executive vice president or any vice president, treasurer or assistant treasurer
or controller without further corporate action by the Depositor, in authorized
denominations.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates. The Depositor shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.8, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates (the "Securities Register"), in
which the registrar designated by the Depositor (the "Securities Registrar"),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to
the Bank also in its role as Securities Registrar, for so long as the Bank shall
act as Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer
of any Preferred Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by an
Administrative Trustee or Securities Registrar in accordance with such Person's
customary practice.
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No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
The Property Trustee shall not be required to ensure or verify
compliance with securities laws, including the Securities Act, Exchange Act and
1940 Act, in connection with transfers and exchanges of Preferred Securities
Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Holders. The Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Holders' Names and Addresses. Each
Holder and each Owner shall be deemed to have agreed not to hold the Depositor,
or any of the Trustees, accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency. The Administrative
Trustees shall maintain an office or offices or agency or agencies where
Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Administrative
Trustees initially designate Boston Scientific Corporation, One Boston
Scientific Place, Natick, Massachusetts 01760-1537, Attention: ________, as its
principal corporate trust office for such purposes. The
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Administrative Trustees shall give prompt written notice to the Depositor and to
the Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.9. Appointment of Paying Agent. The Paying Agent shall make
Distributions to Holders from the Payment Account and shall report the amounts
of such Distributions to the Property Trustee and the Administrative Trustees.
Any Paying Agent shall have the power to receive funds from the Payment Account
for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Declaration in any material
respect. The Paying Agent shall initially be the Bank, and any co- paying agent
chosen by the Bank, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Bank shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 shall apply to the Bank also in its role as Paying
Agent, for so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor. At the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law,
other than a transfer to an Affiliate or in connection with a consolidation or
merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 801 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH
SECTION 5.10 OF THE DECLARATION (AS DEFINED BELOW)".
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate. (a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred Securities
Certificate or Certificates representing Book-Entry
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Preferred Securities Certificates, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner's interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:
(i) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Declaration relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities and shall have no obligations to the Owners thereof;
(ii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Declaration, the provisions
of this Section 5.11 shall control; and
(iii) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments on the Preferred Securities to such
Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that a notice
or other communication to the Holders is required under this Declaration, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Holders to the Clearing Agency,
and shall have no obligations to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates. If (a) the
Depositor advises the Trustees in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Preferred Securities Certificates, and the Depositor is unable to locate a
qualified successor, (b) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency or (c) there shall have occurred and be continuing an Event of Default,
then an Administrative Trustee shall
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notify the Clearing Agency and the Clearing Agency shall notify all Owners of
Book-Entry Preferred Securities Securities Certificates and the other Trustees
of the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee or
Securities Registrar of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Holders. The Definitive Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
SECTION 5.14. Rights of Holders. (a) The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, and the Holders shall not have any right or
title therein other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to call
for any partition or division of property, profits or rights of the Trust except
as described below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Declaration. The Trust
Securities shall have no preemptive or similar rights. When issued and delivered
to Holders of Preferred Securities against payment of the purchase price
therefor, the Preferred Securities will be fully paid and nonassessable
undivided beneficial interests in the Trust Property. The Holders, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in aggregate principal amount of the outstanding Debentures
fail to declare the principal of all of the Debentures to be immediately due,
the Holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due, provided that the payment of principal and interest on
such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of at least a majority in aggregate Liquidation Amount of
the Preferred Securities, by written notice to the Property Trustee, the
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Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest) on all of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which
has become due solely by such acceleration, have been cured or waived
as provided in Section 513 of the Indenture.
The Holders of at least a majority in aggregate Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of Preferred
Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
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acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Declaration and
the Indenture, upon a Debenture Event of Default specified in Section 501.1 or
501.2 of the Indenture, any Holder of Preferred Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Section
508 of the Indenture, for enforcement of payment to such Holder of the principal
amount of or interest on Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c),
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to holders of, or in respect of, Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as provided in
this Section 6.1, in Sections 5.14, 8.10 and 10.2 and in the Indenture, and as
otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Holders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method or place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 513 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Preferred Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of Preferred Securities, except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of Preferred
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
Holders of Preferred Securities, prior to taking any of the foregoing actions,
the Trustees shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such
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matters to the effect that such action shall not cause the Trust to be
classified as an association taxable as a corporation for United States federal
income tax purposes.
(c) If any proposed amendment to the Declaration provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Declaration, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Declaration, no amendment to this Declaration may be made if,
as a result of such amendment, it would cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax
purposes.
SECTION 6.2. Notice of Meetings. Notice of all meetings of Holders of
Preferred Securities, stating the time, place and purpose of the meeting, shall
be given by the Property Trustee pursuant to Section 10.8 to each such Holder at
such Holder's address as it appears in the Securities Register as of the record
date for such meeting. Such notice shall be sent, first-class mail, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
SECTION 6.3. Meetings of Holders of Preferred Securities. No annual
meeting of Holders is required to be held. The Administrative Trustees, however,
shall call a meeting of Holders of Preferred Securities to vote on any matter
upon the written request of the Holders of record of at least 25% of the
aggregate Liquidation Amount of Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on any
matters as to which Holders of Preferred Securities are entitled to vote.
Holders of at least 50% of the Liquidation Amount of Outstanding Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of Holders of Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by
the Holders of record present, in person or by proxy, holding at least a
majority of the Liquidation Amount of Outstanding Preferred Securities held by
the Holders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of Preferred Securities, unless this
Declaration requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights. In respect of any matter as to which a
Holder is entitled to vote, such Holder shall be entitled to one vote for each
$____ of Liquidation Amount Trust Securities held of record by such Holder.
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SECTION 6.5. Proxies, etc. At any meeting of Holders, any Holder
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Holders of record shall be entitled to
vote. When Trust Securities are held jointly by several Persons, any one of them
may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent. Any action which may be
taken by Holders at a meeting may be taken without a meeting if Holders holding
a majority of the aggregate Liquidation Amount of the Outstanding Trust
Securities entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Declaration) shall
consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For the purpose
of determining the Holders who are entitled to notice of and to vote at any
meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Declaration, or for the purpose of any other action, the Administrative
Trustees or Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Declaration to be given, made or taken by Holders or Owners may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders or Owners in person or by an 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 an Administrative
Trustee and the Property Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Declaration and (subject to Section 8.1)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness to such execution or by a
certificate of a notary public
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or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustees or
the Trust in reliance thereon, whether or not notation of such action is made
upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders and the Administrative
Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee under this Article VI,
then the determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
SECTION 6.9. Inspection of Records. Upon reasonable prior written
notice to the Administrative Trustees and the Property Trustee, the records of
the Trust shall be open to inspection by Holders during normal business hours
for any purpose reasonably related to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself alone, hereby represents and warrants
for the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a national bank, duly organized,
validly existing and in good standing under the laws of the United
States;
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(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(c) the Delaware Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Delaware Trustee satisfies for the Trust Section
3807 of the Delaware Business Trust Act;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(e) this Declaration has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(f) execution, delivery and performance of this Declaration
has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and does not
require any approval of stockholders of the Property Trustee or the
Delaware Trustee and such execution, delivery and performance will not
(i) violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which
the Property Trustee or the Delaware Trustee is a party or by which it
is bound, or (iii) violate any law, governmental rule or regulation of
the United States or the State of Delaware, as the case may be,
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Declaration nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to
any governmental authority or agency under any existing federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of
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Delaware (other than the filing of appropriate certificates in
accordance with the Delaware Business Trust Act); and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware
Trustee, as the case may be, to enter into or perform its obligations
as one of the Trustees under this Declaration.
SECTION 7.2. Representations and Warranties of Depositor. The Depositor
hereby represents and warrants for the benefit of the Holders that the Trust
Securities Certificates issued on the Closing Date by the Trust have been duly
authorized and will have been, duly and validly executed, issued and delivered
by an Administrative Trustee pursuant to the terms and provisions of, and in
accordance with the requirements of, this Declaration and the Holders will be,
as of each such date, entitled to the benefits of this Declaration.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Trustees shall be as expressly provided by
this Declaration and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Declaration
shall require the Trustees to expend or risk their own funds or otherwise to
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers, if they shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.1.
(b) No provision in this Declaration shall be construed to release an
Administrative Trustee from liability for his own grossly negligent action, his
own grossly negligent failure to act, or his own willful misconduct. To the
extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) to the Trust or to the Holders, and liabilities
relating thereto, such Administrative Trustee shall not be liable to the Trust
or to any Holder for such Trustee's good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the Holders to
replace such other duties and liabilities of the Administrative Trustees.
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(c) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(c) does not limit the liability of the Trustees expressly set forth
elsewhere in this Declaration or, in the case of the Property Trustee, in the
Trust Indenture Act.
(d) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Declaration, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
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SECTION 8.2. Certain Notices. Within five Business Days after the
occurrence of any Event of Default actually known to a Responsible Officer of
the Property Trustee, the Property Trustee shall transmit, in the manner and to
the extent provided in Section 10.8, notice of such Event of Default to the
Holders, the Administrative Trustees and the Depositor, unless such Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, written notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
SECTION 8.3. Certain Rights of Property Trustee. Subject to the
provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Declaration
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions of this
Declaration the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Preferred
Holders are entitled to vote under the terms of this Declaration, the
Property Trustee shall deliver a notice to the Depositor requesting
written instructions of the Depositor as to the course of action to be
taken and the Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be instructed in
writing to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not receive such
instructions of the Depositor within ten Business Days after it has
delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be
less than two Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best interests of
the Holders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
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(d) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice, such counsel may
be counsel to the Depositor or any of its Affiliates, and may include
any of its employees; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any of the Holders pursuant to this
Declaration, unless such Holders shall have offered to the Property
Trustee reasonable security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing
to do so by one or more Holders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, attorneys, custodians or nominees provided that
the Property Trustee shall not be responsible for any misconduct or
negligence or recklessness on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(j) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given
by the Holders of the
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same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the
Trust Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be fully
protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty. The Delaware Trustee shall have the same rights and
benefits as the Property Trustee under this paragraph and paragraphs (a) through
(k) of this Section.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities. Any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13 and
except as provided in the definition of the term "Outstanding" in Article I, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (or gross negligence with
respect to the Administrative Trustees) or bad faith; and
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(c) to the fullest extent permitted by applicable law, to
indemnify, defend and hold harmless (i) each Trustee in its individual
capacity, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by such Indemnified Person by
reason of or in connection with the creation, existence, operation or
termination of the Trust or any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the
scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified pursuant to this Section 8.6 in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of
negligence (or gross negligence with respect to the Administrative
Trustees) or willful misconduct with respect to such acts or
omissions.
The provisions of this Section 8.6 shall survive the termination of
this Declaration.
No Trustee may claim any Lien or charge on any Trust Property (except
for funds not held in trust for the payment of principal of, or premium if any,
or interest on particular securities or any coupons) as a result of any amount
due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property Trustee,
subject to Section 8.8) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition
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so published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements under the Delaware Business Trust Act that
the Trust have a trustee in the State of Delaware, as the same now exists or as
may hereafter be amended, and that shall act through one or more persons
authorized to bind such entity.
SECTION 8.8. Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Declaration.
SECTION 8.9. Co-Trustees and Separate Trustee. Unless an Event of
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event of
Default shall have occurred and be continuing, the Property Trustee alone shall
have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such
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property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of
the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Trustees specified
hereunder shall be exercised solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event
of Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution,
delivery and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act or omission of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
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SECTION 8.10. Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common Holder.
If a Debenture Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Common Holder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Holder, by Act of the Common Holder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Holders, by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture Event
of Default shall have occurred and be continuing, the Common Holder by Act of
the Common Holder delivered to the Administrative Trustee shall promptly appoint
a successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Holder or the Preferred Holders and accepted appointment in the
manner required by Section 8.11, any Holder who has been a Holder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in
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Section 10.8 and shall give notice to the Depositor. Each notice shall include
the name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Trust Securities
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (b) shall add to or change any of the provisions of this
Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees. Upon the execution and delivery of such
amendment, the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee and upon payment in
full of all undisputed amounts then due and owing to such retiring Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee
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hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent
to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.14. Reports by Property Trustee. Within 60 days after
________ of each year commencing with the first _________ after the first
issuance of Trust Securities pursuant to this Declaration, the Trustee shall
transmit by mail to all Holders of Trust Securities as provided in Section
313(c) of the Trust Indenture Act a brief report dated as of such ________ if
and to the extent required by Section 313(a) of the Trust Indenture Act.
SECTION 8.15. Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents,
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reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314 (c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.17. Number of Trustees. (a) The number of Trustees shall be
five, provided that the Holder of all the Outstanding Common Securities by
written instrument may increase or decrease the number of Administrative
Trustees. The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Administrative Trustees shall occur, until
such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Declaration.
SECTION 8.18. Delegation of Power. (a) Any Administrative Trustee may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including making any governmental
filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of this Declaration, as set forth herein.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve 45 years from the Closing Date
(the "Expiration Date").
SECTION 9.2. Early Termination. The Trust shall dissolve upon the first
to occur of any of the following events (an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, distribute Debentures to Holders in
exchange for the Preferred Securities (which direction is optional and
wholly within the discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust shall terminate upon the latest
to occur of the following:
(a) the distribution by the Property Trustee to Holders upon
the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final
payment of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Trust or the Holders.
SECTION 9.4. Liquidation. (a) If an Early Termination Event specified
in clause (a), (b) or (d) of Section 9.2 occurs, or upon the Expiration Date,
the Trust shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to each Holder a Like
Amount
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of Debentures, subject to Section 9.4(d). Notice of liquidation shall be given
by the Property Trustee by first-class mail, postage prepaid mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Unless Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and the distribution of Debentures to Holders, the
Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Unless Section 9.2(c) or 9.4(d) applies, after the Liquidation Date
(i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) the Depositor shall
use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization as the Preferred Securities are then listed, (iv) any
Trust Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive Debentures
upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, then the Trust
Property shall be liquidated, and the Trust shall be wound up by the Property
Trustee in such manner as the Property Trustee determines subject to applicable
law. In such event,
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on the date of the dissolution of the Trust, Holders will be entitled to receive
out of the assets of the Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid pro rata based upon
Liquidation Amounts. The Holder of the Outstanding Common Securities will be
entitled to receive Liquidation Distributions upon any such liquidation pro
rata, based upon Liquidation Amount, with Holders of Preferred Securities,
except that, if any Debenture Event of Default shall have occurred and be
continuing at the time of payment of the Liquidation Distribution, the Preferred
Securities shall have a priority over the Common Securities with respect to
payment of any amount of Liquidation Distribution.
(e) Following the Expiration Date or an Early Termination Event and
after the completion of the winding up of the affairs of the Trust pursuant to
this Section 9.4, one of the Trustees shall file a certificate of cancellation
with the Delaware Secretary of State.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Article IX.
At the request of the Holder of the Common Securities, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities ("Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to distributions
and payments upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity possessing the same powers
and duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then listed or traded,
if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Property Trustee has received an Opinion of Counsel to the effect that (a)
such merger, consolidation, amalgamation, replacement,
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conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of all Outstanding Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor Person to
be classified as an association taxable as a corporation for United States
federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders. The death or incapacity,
or the dissolution, liquidation, termination, or the bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Declaration or dissolve, terminate or annul the Trust,
nor entitle the legal representatives, successors or heirs of such person or any
Holder for such person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment. (a) This Declaration may be amended from time
to time by the Property Trustee, the Administrative Trustees and the Holder of
the Common Securities, without the consent of any Holders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Declaration, which shall not be
inconsistent with the other provisions of this Declaration, or (ii) to modify,
eliminate or add to any provisions of this Declaration to such extent as shall
be necessary to ensure that the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation at any
times that any Trust Securities are outstanding or to ensure that the Trust will
not be required to register as an investment company under the 1940 Act;
provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Holder, and any
such amendments of this Declaration shall become effective when notice thereof
is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Declaration may be amended by the Trustees and the Holder of the Common
Securities with (i) the consent of Holders representing not less than a majority
Liquidation Amount of the Outstanding Trust
47
<PAGE>
Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not cause the Trust to be classified as
an association taxable as a corporation for United States federal income tax
purposes or affect the Trust's exemption from status of an investment company
under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Declaration may not
be amended to (i) change the amount or timing of any Distribution or otherwise
adversely affect the amount of any Distribution required to be made as of a
specified date or (ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date; notwithstanding any other
provision herein, without the unanimous consent of the Holders (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c)
of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration, no
Trustee shall enter into or consent to any amendment to this Declaration which
would cause the Trust to be classified as an association taxable as a
corporation for United States federal income tax purposes or fail or cease to
qualify for the exemption from status of an investment company under the 1940
Act.
(e) Notwithstanding anything in this Declaration to the contrary,
without the consent of the Depositor, this Declaration may not be amended in a
manner which imposes any additional obligation or liability on the Depositor.
(f) If any amendment to this Declaration is made, the Administrative
Trustees shall promptly provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration which affects its own
rights, duties or immunities under this Declaration. The Property Trustee shall
be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Declaration is in compliance with this
Declaration.
SECTION 10.3. Separability. If any provision in this Declaration or in
the Trust Securities Certificates shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.4. Governing Law. THIS DECLARATION AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR AND THE TRUSTEES
WITH RESPECT TO THIS DECLARATION AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
48
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SECTION 10.5. Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day that is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Sections
4.1(a) and 4.2(d)), with the same force and effect as though made on the date
fixed for such payment, and no interest shall accrue thereon for the period
after such date.
SECTION 10.6. Successors. This Declaration shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder (any purported assignment
in contravention of this Section 10.6 being null and void).
SECTION 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration.
SECTION 10.8. Reports, Notices and Demands. Any report, notice, demand
or other communication which by any provision of this Declaration is required or
permitted to be given or served to or upon any Holder or the Depositor may be
given or served in writing by deposit thereof, first-class postage prepaid, in
the United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Preferred Securities, to such Holder
as such Holder's name and address may appear on the Securities Register; and (b)
in the case of the Common Holder or the Depositor, to Boston Scientific
Corporation, One Boston Scientific Place, Natick, Massachusetts 01760-1537,
Attention: General Counsel, facsimile number: (508) 650-8960. Such notice,
demand or other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Declaration is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrative Trustees
shall be given in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee to ________; (b)
with respect to the Delaware Trustee, to The Chase Manhattan Bank Delaware, 1201
North Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration; (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked "Attention Administrative
Trustees of BSC Capital Trust II"; and (d) with respect to the Trust to Boston
Scientific Corporation, One Boston Scientific Place, Natick, Massachusetts
01760- 1537, Attention: General Counsel. Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees and the
Depositor agree for the benefit of the Holders that, until at least one year and
one day after the Trust has been
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<PAGE>
terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration.
SECTION 10.10. Application of Trust Indenture Act. (a) This Declaration
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Declaration by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Declaration modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Declaration as so modified or
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee and
Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
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[Signatures on Next Page]
51
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IN WITNESS WHEREOF, the undersigned have executed this
Amended and Restated Declaration as of the date first above written.
BOSTON SCIENTIFIC CORPORATION,
as Depositor
By: __________________________________
Name:
Title:
[PROPERTY TRUSTEE], as Property Trustee
By: __________________________________
Name:
Title:
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: __________________________________
Name:
Title:
By: __________________________________
________, as Administrative Trustee
By: __________________________________
________, as Administrative Trustee
By: __________________________________
________, as Administrative Trustee
52
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EXHIBIT A
CERTIFICATE OF TRUST OF
BSC CAPITAL TRUST II
The undersigned Trustees of BSC Capital Trust II (the "Trust"),
pursuant to the Delaware Business Trust Act (12 Del.C. ss.3801, et seq.), HEREBY
CERTIFY:
1. Name. The name of the business trust formed hereby is BSC Capital
Trust II.
2. Delaware Trustee. The name and business address of the Delaware
Trustee of the Trust in the State of Delaware is Chase Manhattan Bank Delaware,
1201 North Market Street, Wilmington, New Castle County, Delaware 19801, Attn:
Corporate Trust Administration.
IN WITNESS WHEREOF, the undersigned being all of the Trustees of the
Trust, have executed this Certificate of Trust as of the 29th day of September,
1998
DELAWARE TRUSTEE:
Chase Manhattan Bank Delaware
By: /s/ John J. Cashin
--------------------------
Name: John J. Cashin
Title: Trust Officer
TRUSTEE
/s/ Paul W. Sandman
-----------------------------
Name: Paul W. Sandman
TRUSTEE
/s/ Janet M. Kelly
-----------------------------
Name: Janet M. Kelly
<PAGE>
EXHIBIT B
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099
Attention: General Counsel's Office
Re: BSC Capital Trust II ____% Cumulative Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the BSC
Capital Trust II ____% Cumulative Trust Preferred Securities (the "Preferred
Securities"), of BSC Capital Trust II, a Delaware business trust (the "Issuer"),
created and continued pursuant to an Amended and Restated Declaration of Trust
between BOSTON SCIENTIFIC CORPORATION. ("Boston Scientific"), ________, as
Property Trustee, The Chase Manhattan Bank Delaware, as Delaware Trustee, the
Administrative Trustees named therein and the holders, from time to time, of
undivided beneficial interests in the assets of the trust. The payment of
distributions on the Preferred Securities, and payments due upon liquidation of
Issuer or redemption of the Preferred Securities, to the extent the Issuer has
funds available for the payment thereof are guaranteed by Boston Scientific to
the extent set forth in a Guarantee Agreement dated ____________, ____ by Boston
Scientific with respect to the Preferred Securities. Boston Scientific and the
Issuer propose to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated __________, ____ by
and among the Underwriters, the Issuer and Boston Scientific dated
______________, ____ and the Underwriters wish to take delivery of the Preferred
Securities through DTC. _____________ is acting as transfer agent and registrar
with respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about __________ __, ____, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of
____________ Preferred Securities and bearing the following legend:
<PAGE>
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to Issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the
name of Cede & Co. or in 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.
2. The Amended and Restated Declaration of Trust provides for the
voting by holders of the Preferred Securities under certain limited
circumstances (with no provision for revocation of consents or votes by
subsequent holders). The Issuer shall establish a record date for such purposes
and shall, to the extent possible, give DTC notice of such record date not less
than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
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<PAGE>
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is "BSC
Capital Trust II ____% Cumulative Trust Preferred Securities."
3
<PAGE>
8. Distribution payments or other cash payments that are part of
periodic payments with respect to the Preferred Securities evidenced by the
Global Certificate shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same-day funds no later than 2:30 p.m. (Eastern Time) on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Absent any other
arrangements between the Issuer or the Transfer Agent and Registrar and DTC,
such funds shall be wired as follows:
___________________
___________________
The Issuer or the Transfer Agent and Registrar shall provide payment
information to a standard announcement service subscribed to by DTC. In the
unlikely event that no such service exists, the Issuer agrees that it or the
Transfer Agent and Registrar shall provide this information directly to DTC in
advance of the record date as soon as the information is available. This
information should be conveyed directly to DTC electronically. If electronic
transmission is not available, absent any other arrangements between the
Transfer Agent and DTC, such information should be sent by telecopy to DTC's
Dividend Department at (212) 709-1723 or (212) 709-1686, and receipt of such
notices shall be confirmed by telephoning (212) 709-1270. Notices to DTC
pursuant to the above by mail or by any other means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
9. DTC shall receive maturity and redemption payments with respect to
the Preferred Securities evidenced by the Global Certificate allocated with
respect to each CUSIP number on the payable date in same-day funds by 2:30 p.m.
(Eastern Time). Absent any other arrangements between the Transfer Agent and
Registrar and DTC, such payments shall be wired as follows:
___________________
___________________
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS Paying Agent Operating Procedures, a copy of which has previously
been furnished to the Transfer Agent and Registrar.
10. DTC shall receive all reorganization payments and CUSIP-level
detail resulting from corporate actions (such as tender offers, remarketings, or
mergers) on the first payable
4
<PAGE>
date in same-day funds by 2:30 p.m. (Eastern Time). Absent any other
arrangements between the Transfer Agent and Registrar and DTC, such payments
shall be wired as follows:
___________________
___________________
11. DTC may by prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
12. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
13. DTC may discontinue its services as a securities depository with
respect to the Preferred Securities at any time by giving reasonable notice to
the Issuer and the Transfer Agent and Registrar (at which time DTC will confirm
with the Issuer or the Transfer Agent and Registrar the aggregate number of
Preferred Securities deposited with it) and discharging its responsibilities
with respect thereto under applicable law. Under such circumstances, the Issuer
may determine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue definitive Preferred Securities to the
beneficial holders thereof, and in any such case, DTC agrees to cooperate fully
with the Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
14. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
5
<PAGE>
15. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of BSC Capital Trust II.
Very truly yours,
BSC CAPITAL TRUST II, as Issuer
By: _______________________________
Name: _______________________________
Administrative Trustee
_________________________________
as Trustee, Transfer Agent and Registrar
By: _______________________________
Name: _______________________________
Title: ______________________________
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: __________________
Authorized Officer
6
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
OTHER THAN IN ACCORDANCE WITH SECTION 5.10
-------------------------------------
OF THE DECLARATION (AS DEFINED BELOW)
-------------------------------------
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 [_________________]
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BSC CAPITAL TRUST II
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $_________ PER COMMON SECURITY)
BSC CAPITAL TRUST II, a business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that BOSTON SCIENTIFIC
CORPORATION, a Delaware corporation (the "Holder"), is the registered owner of (
) common securities of the Trust, representing beneficial interests of the Trust
and designated the ____% Common Securities (Liquidation Amount $_____ per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of the
Declaration (as defined below) the Common Securities are not transferable and
any attempted transfer hereof shall be null and void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of the Trust,
dated as of _______________, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth therein. The Trust will furnish a copy of the Declaration to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS THEREUNDER.
<PAGE>
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Trust
has executed this certificate as of _____________________.
BSC CAPITAL TRUST II
By: ____________________________
Name: ____________________________
Administrative Trustee
2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
------------------------------
AGREEMENT, dated as of _________________, between BOSTON SCIENTIFIC
CORPORATION, a Delaware corporation (the "Corporation"), and BSC CAPITAL TRUST
II, a Delaware business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from the Corporation and to issue and
sell ____% Cumulative Trust Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Declaration of the Trust, dated as of
___________, as the same may be amended from time to time (the "Declaration");
and
WHEREAS, the Corporation will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Corporation hereby agrees shall benefit
the Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation.
Subject to the terms and conditions hereof, the Corporation hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
1
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force or effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid in respect of the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof between the Corporation and
________, as guarantee trustee or under this Agreement for any reason
whatsoever.
This Agreement shall be continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. Waiver of Notice.
The Corporation hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and the Corporation
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of the Corporation
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust. There shall be
no obligation of the Beneficiaries to give notice to, or obtain the
consent of, the Corporation with respect to the happening of any of
the foregoing.
2
<PAGE>
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against the
Corporation and the Corporation waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against the Corporation.
SECTION 1.6. Subrogation.
The Corporation shall be subrogated to all (if any) rights of the Trust
in respect of any amounts paid to the Beneficiaries by the Corporation under
this Agreement; provided, however, that the Corporation shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
This Agreement shall bind the successors, assigns, receivers, trustees
and representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.2. Amendment.
So long as there shall remain any Beneficiary or any
Preferred Securities of any series shall be outstanding, this Agreement may not
be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
3
<PAGE>
BSC CAPITAL TRUST II
c/o BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Facsimile No.: (580) 650-8960
Attention: General Counsel
BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Facsimile No.: (580) 650-8960
Attention: General Counsel
SECTION 2.4. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
BOSTON SCIENTIFIC CORPORATION
By: _____________________________
Name: _____________________________
Title:_____________________________
BSC CAPITAL TRUST II
By: _____________________________
Name: _____________________________
Administrative Trustee
4
<PAGE>
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Preferred Security is a Global Certificate (as may be defined in the Declaration
hereinafter referred to or in the Amended and Restated Declaration of Trust, as
may be amended from time to time) and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
BSC Capital Trust II or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P- [___________]
CUSIP NO.____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BSC CAPITAL TRUST II
____% CUMULATIVE TRUST PREFERRED CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $________ PER PREFERRED SECURITY)
BSC Capital Trust II, a business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ___________________ (the
"Holder") is the registered owner of (______) preferred securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the BSC Capital Trust II ____% Cumulative Trust Preferred Securities
(Liquidation Amount $_____ per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized
<PAGE>
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.4 of the Declaration (as defined below).
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of the Trust, dated as of _______________, as the same may
be amended from time to time, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of Preferred Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by BOSTON SCIENTIFIC CORPORATION, a Delaware corporation,
and________, as guarantee trustee, dated as of _____________ (the "Guarantee"),
to the extent provided therein. The Trust will furnish a copy of the Declaration
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER
AGREES TO BE BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS
THEREUNDER.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of
the Trust has executed this certificate as of __________________.
BSC CAPITAL TRUST II
By: __________________________
Name: __________________________
Administrative Trustee
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:_________
Signature: ______________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
EXHIBIT 4.16
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
among
BOSTON SCIENTIFIC CORPORATION
as Depositor,
[PROPERTY TRUSTEE],
as Property Trustee,
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
---------------
BSC CAPITAL TRUST III
---------------
Dated as of ___________, _____
<PAGE>
BSC CAPITAL TRUST III
Certain Sections of this Declaration relating to Sections 310
through 318 of the Trust Indenture Act of 1939:
[TO BE UPDATED]
Trust Indenture
Declaration Act Section Section
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Declaration.
<PAGE>
TABLE OF CONTENTS
[To be updated]
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation..................................................1
SECTION 1.2. Certain Definitions.............................................2
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name............................................................11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....11
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.11
SECTION 2.4. Issuance of the Preferred Securities............................11
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debentures.........................................11
SECTION 2.6. Declaration of Trust............................................12
SECTION 2.7. Authorization to Enter into Certain Transactions................12
SECTION 2.8. Assets of Trust.................................................15
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.................................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions...................................................16
SECTION 4.2. Redemption......................................................17
SECTION 4.3. Subordination of Common Securities..............................19
SECTION 4.4. Payment Procedures..............................................20
SECTION 4.5. Tax Returns and Reports.........................................20
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.....................20
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SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions..........20
SECTION 4.8. Liability of the Holder of Common Securities....................20
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...............................................20
SECTION 5.2. The Trust Securities Certificates...............................21
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.........21
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.........................................21
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.........................................22
SECTION 5.6. Persons Deemed Holders..........................................22
SECTION 5.7. Access to List of Holders' Names and Addresses..................23
SECTION 5.8. Maintenance of Office or Agency.................................23
SECTION 5.9. Appointment of Paying Agent.....................................23
SECTION 5.10. Ownership of Common Securities by Depositor....................24
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.............................24
SECTION 5.12. Notices to Clearing Agency.....................................25
SECTION 5.13. Definitive Preferred Securities Certificates...................25
SECTION 5.14. Rights of Holders..............................................25
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights....................................27
SECTION 6.2. Notice of Meetings..............................................28
SECTION 6.3. Meetings of Holders of Preferred Securities.....................28
SECTION 6.4. Voting Rights...................................................29
SECTION 6.5. Proxies, etc....................................................29
SECTION 6.6. Holder Action by Written Consent................................29
SECTION 6.7. Record Date for Voting and Other Purposes.......................29
SECTION 6.8. Acts of Holders.................................................30
SECTION 6.9. Inspection of Records...........................................30
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.....................................31
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SECTION 7.2. Representations and Warranties of Depositor.....................32
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.............................32
SECTION 8.2. Certain Notices.................................................34
SECTION 8.3. Certain Rights of Property Trustee..............................34
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........36
SECTION 8.5. May Hold Securities.............................................36
SECTION 8.6. Compensation; Indemnity; Fees...................................37
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees....38
SECTION 8.8. Conflicting Interests...........................................38
SECTION 8.9. Co-Trustees and Separate Trustee................................38
SECTION 8.10. Resignation and Removal; Appointment of Successor..............40
SECTION 8.11. Acceptance of Appointment by Successor.........................41
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business....42
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust...42
SECTION 8.14. Reports by Property Trustee....................................43
SECTION 8.15. Reports to the Property Trustee................................43
SECTION 8.16. Evidence of Compliance with Conditions Precedent...............43
SECTION 8.17. Number of Trustees.............................................43
SECTION 8.18. Delegation of Power............................................44
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date................................44
SECTION 9.2. Early Termination...............................................44
SECTION 9.3. Termination.....................................................44
SECTION 9.4. Liquidation.....................................................45
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust................................................46
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders................................47
SECTION 10.2. Amendment......................................................48
SECTION 10.3. Separability...................................................49
SECTION 10.4. Governing Law..................................................49
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<PAGE>
SECTION 10.5. Payments Due on Non-Business Day...............................49
SECTION 10.6. Successors.....................................................49
SECTION 10.7. Headings.......................................................49
SECTION 10.8. Reports, Notices and Demands...................................49
SECTION 10.9. Agreement Not to Petition......................................50
SECTION 10.10. Application of Trust Indenture Act............................50
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee and Indenture...51
iv
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
__________, _____ among (i) BOSTON SCIENTIFIC CORPORATION., a Delaware
corporation (including any successors or assigns, the "Depositor"), (ii)
[PROPERTY TRUSTEE], a ________ organized under the laws of ________, as property
trustee, (in each such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) THE CHASE MANHATTAN BANK DELAWARE, a _________ organized under the laws of
________, as Delaware trustee (the "Delaware Trustee"), (iv) ________, an
individual, ________, an individual, and ________, an individual, each of whose
address is c/o Boston Scientific Corporation, One Boston Scientific Place,
Natick, Massachusetts 01760-1537 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees, collectively, the "Trustees") and (v)
the several HOLDERS, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, the Depositor and certain of the Trustees have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Declaration of
Trust, dated as of September 29, 1998 (the "Original Declaration"), and by the
execution and filing by certain of the Trustees with the Secretary of State of
the State of Delaware of the Certificate of Trust, filed on September 29, 1998,
attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Declaration in its entirety as set forth herein to provide
for, among other things, (i) the issuance of the Common Securities by the Trust
to the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Securities and
(iv) the appointment of the Property Trustee, the Delaware Trustee, and
Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Declaration in its entirety and agrees as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation. For all purposes of this
Declaration, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
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<PAGE>
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Declaration; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Declaration as a whole and not to
any particular Article, Section or other subdivision.
SECTION 1.2. Certain Definitions. For all purposes of this
Declaration, the following terms shall have the meanings assigned below:
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Debentures for such period.
"Additional Interest" means any interest on defaulted
interested payable pursuant to Section 3.07(a) of the Indenture.
"Administrative Trustee" means each of the Persons identified
as an "Administrative Trustee" in the preamble to this Declaration, solely in
such Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or such Administrative Trustee's successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; provided, however, that the Trust
shall not be deemed an Affiliate of the Depositor. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this
Declaration.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
2
<PAGE>
law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means (i) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, or (ii) a certificate signed by the authorized
officer or officers of the Depositor to whom the Board of Directors or a
committee thereof has delegated its authority and, in each case, delivered to
the Trustees.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than
(a) a Saturday or Sunday,
(b) a legal holiday or day on which banking institutions in
the City of New York are authorized or required by law, regulation or
executive order to remain closed, or
(c) a day on which the Property Trustee's Corporate Trust
Office or the Corporate Trust Office of the Debenture Trustee is closed
for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Preferred
Securities Certificates, substantially in the form attached as Exhibit B, as the
same may be amended and supplemented from time to time.
3
<PAGE>
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
Trust Company will be the initial Clearing Agency with respect to Preferred
Securities Certificates.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 of this Declaration such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Holder" means the holder of all or substantially all
of the Common Securities.
"Common Securities Certificate" means a certificate evidencing
Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $________ and having the
rights provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal office of the Property Trustee located at
________; Attention: ________, and (ii) when used with respect to the Debenture
Trustee, the principal office of the Debenture Trustee located in
- --------------.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
4
<PAGE>
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, solely in its capacity as Debenture Trustee of the
Debentures and not in its individual capacity and any successor thereto.
"Debentures" means the aggregate principal amount of the
Depositor's ___% ____________________________, issued pursuant to the Indenture.
"Declaration" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including (i) all exhibits hereto and (ii) for
all purposes of this Declaration and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Declaration and any such modification, amendment or
supplement, respectively.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates
representing Book-Entry Preferred Securities Certificates as provided in Section
5.11(a) and (b) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Declaration, solely in its capacity
as Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means any one of the following events
(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) the occurrence of a Debenture Event of Default; or
5
<PAGE>
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable;
or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Declaration (other than a covenant or warranty a default in the
performance or breach of which is described in clause (b) or (c) above)
and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time and the rules and regulations promulgated thereunder
by the Commission.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and ________, as trustee, contemporaneously with the
execution and delivery of this Declaration, for the benefit of the holders of
the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or
Trust Securities is registered in the Securities Register; any such Person shall
be a beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that for purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Declaration, so long as Definitive Preferred Securities Certificates
have not been issued as provided in Section 5.13, the term "Holders" shall refer
to the Owners.
"Indenture" means the Subordinated Debt Securities Indenture,
dated as of _______________, _____ between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to time.
6
<PAGE>
"Investment Company Event" means the receipt by the Trust of
an opinion of counsel to the Depositor experienced in such matters (which may be
counsel to the Depositor) to the effect that, as a result of the occurrence of a
change in law or regulation or a written change (including any announced
prospective change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act, which
change or prospective change becomes effective or would become effective, as the
case may be, on or after the date of the issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Debentures to
Holders in connection with a dissolution or liquidation of the Trust, Debentures
having a principal amount equal to the aggregate Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed. "Liquidation
Amount" means the stated amount of $________ per Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a covenant or condition provided for in this
Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
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(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor and who
shall be reasonably acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the
recitals to this Declaration.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Declaration, except:
(a) Trust Securities theretofore canceled by the Securities
Registrar or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for the payment or redemption of which
money in the necessary amount theretofore has been deposited with the
Property Trustee or any Paying Agent for the Holders of such Trust
Securities; provided that, if such Trust Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Declaration;
(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided,
however, that in determining whether the Holders of the requisite
aggregate Liquidation Amount of Outstanding Preferred Securities have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that a Responsible Officer of such
Trustee actually knows to be so owned shall be so disregarded; and
(d) the foregoing shall not apply at any time when all the
outstanding Preferred Securities are owned by the Depositor, one or
more of the Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to
such Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
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"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means any individual, corporation, association
partnership, joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $______ and having the
rights provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Declaration, solely in its capacity
as Property Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for redemption thereof; provided that each Debenture
Redemption Date and the stated maturity of the Debentures shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount thereof, plus accumulated and unpaid Distributions to the
Redemption Date, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures,
allocated pro rata (based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Responsible Officer" shall mean when used with respect to the
Property Trustee any officer within the Corporate Trust Office including any
Vice President, Managing Director, Assistant Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Trust" means the Delaware business trust heretofore created,
and continued hereby, and identified on the cover page to this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this Declaration is executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of
the Trust under the Expense Agreement, (c) any cash on deposit in, or owing to,
the Payment Account and (d) all proceeds and rights in respect of the foregoing
and any other property and assets for the time being held or deemed to be held
by the Property Trustee pursuant to the trusts of this Declaration.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee, and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of ____________, _____, among the Trust, the Depositor and the several
underwriters named therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known
as "BSC Capital Trust III", as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees
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may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business. The name and address of the Delaware Trustee, with a principal
place of business in the State of Delaware, is The Chase Manhattan Bank
Delaware, 1201 North Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Holders and the
Depositor. The principal executive office of the Trust is in care of Boston
Scientific Corporation, One Boston Scientific Place, Natick, Massachusetts
01760-1537.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt in trust from
the Depositor in connection with the Original Declaration of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. The
Depositor, on behalf of the Trust and pursuant to the Original Declaration,
executed and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Declaration, an Administrative Trustee, on behalf
of the Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, representing ________ Preferred Securities, having an aggregate
Liquidation Amount of $________ against receipt of the aggregate purchase price
of such Preferred Securities of $_________ which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures. Contemporaneously with the execution and delivery of
this Declaration, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, representing
______ Common Securities, having an aggregate Liquidation Amount of $________,
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal amount of
$____________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $____________ (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first
sentence of this Section 2.5).
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SECTION 2.6. Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and to use the
proceeds from such sale to acquire Debentures, and (b) to engage in those
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Trustees as trustees of the Trust, each to have all the rights,
powers and duties of such Trustee set forth herein, and the Trustees hereby
accept such appointment. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Trust and the Holders. The Administrative Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust.
Notwithstanding anything in this Declaration to the contrary, the Delaware
Trustee shall not be entitled to exercise any powers or authority (except to the
extent required under the Delaware Business Trust Act), nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Trustees
collectively, the Property Trustee or the Administrative Trustees set forth
herein. Notwithstanding any provision to the contrary in this Declaration or
elsewhere, the Delaware Trustee shall be one of the trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Delaware Business Trust Act and (except for such duties of the Delaware
Trustee as may be expressly set forth herein) the Delaware Trustee (both as such
and in its individual capacity) shall have no duties or liabilities to any
Person under this Declaration or otherwise in respect of or in connection with
the Trust, the Trust Securities, or its serving as a trustee of the Trust.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Declaration. Subject to the limitations set forth in Section
2.7(b), and in accordance with the following clauses (i) and (ii), the Trustees
shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Declaration,
and to perform all acts in furtherance thereof, including without limitation the
following:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Declaration as a trust indenture under the Trust
Indenture Act;
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(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Holders in accordance with this
Declaration;
(F) the appointment of a Paying Agent and Securities
Registrar in accordance with this Declaration;
(G) registering transfer of the Trust Securities in
accordance with this Declaration;
(H) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise required by the Trust Indenture
Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Administrative Trustees) any
documents that the Administrative Trustees have the power to
execute pursuant to this Declaration; and
(J) the taking of any action incidental or convenient
to the foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to give effect to
the terms of this Declaration for the benefit of the Holders
(without consideration of the effect of any such action on any
particular Holder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Holders in respect of the Trust
Securities;
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(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders in accordance with this Declaration;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration;
(H) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental or convenient to
the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Declaration and protect and conserve the Trust
Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Declaration remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Declaration, (ii)
sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to Holders, except
as expressly provided herein, (iii) take any action that would cause the Trust
to become taxable as a corporation for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other debt
or (v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Declaration are hereby ratified and confirmed in all respects): (i) the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration
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statement on the appropriate form in relation to the Preferred Securities,
including any amendments thereto; (ii) the determination of the States in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to the
Trustees of actions they must take on behalf of the Trust, and the preparation
for execution and filing of any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States; (iii) the
preparation for filing by the Trust and execution on behalf of the Trust of an
application to the New York Stock Exchange or any other national stock exchange
or the Nasdaq National Market for listing, upon notice of issuance, of any
Preferred Securities; (iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration statement
on Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the
Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or to be
classified as an association taxable as a corporation for United States federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Declaration, that each of the Depositor and any Administrative Trustee
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Preferred Securities.
SECTION 2.8. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Holders in accordance with this Declaration.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment
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Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Declaration. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds in respect of, the Debentures.
(c) Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions. (a) The Trust Securities represent
undivided beneficial interests in the Trust Property, and Distributions
(including of Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including Additional Interest)
are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from ____________, and, except to the extent that the Depositor
exercises its right to defer the payment of interest on the Debentures
in accordance with the Indenture, shall be payable semi-annually in
arrears on ________ and ___________ of each year, commencing on
____________. If any date on which a Distribution otherwise would be
payable on the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay), or, if such Business Day falls in the next calendar
year, on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming that payments of interest on the Debentures are
made when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of _____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period
shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year
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of twelve 30-day months. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date for such Distribution Date, which shall be one
Business Day prior to such Distribution Date; provided, however, that
in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date for a Distribution Date
shall be the date 15 days prior to such Distribution Date.
SECTION 4.2. Redemption. (a) On each Debenture Redemption Date
and upon the stated maturity of the Debentures, the Trust will be required to
redeem or pay off a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first- class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification, to the extent possible, and the
aggregate Liquidation Amount of the Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption Price in
respect of each such Trust Security to be redeemed will be due and that
Distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be due on each Redemption Date only
to the extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, so
long as the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price. If the Preferred Securities are no
longer in book- entry-only form, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent funds sufficient to pay
the applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, any Distribution the Distribution Date for which shall occur on or
prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Securities Register on the relevant record date for such Distribution Date. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders of Trust Securities so
called for redemption will cease with respect to such Trust Securities, except
the right of such Holders to receive the Redemption Price therefor and any
Distribution thereon the Distribution Date for which shall occur on or prior to
the Redemption Date, but without interest, and such Trust Securities will cease
to be Outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), or, if such
Business Day falls in the next calendar year, on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price for any Trust Securities
called for redemption is improperly withheld or refused and not paid either by
the Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price for Trust Securities shall
be made to the Holders thereof as they appear on the Securities Register on the
relevant record date for the Redemption Date, which shall be one Business Day
prior to such Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the relevant record
date for a Redemption Date shall be the date 15 days prior to such Redemption
Date.
(f) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated pro rata (based on Liquidation Amounts) among the Common Securities
and the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected pro rata (based upon Liquidation Amounts) not more than 60
days prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by such method
(including, without limitation, by lot) as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to
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$________ or an integral multiple of $_____ in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $_____.
The Property Trustee shall promptly notify the Security Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the Liquidation Amount of Preferred
Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities. (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made, subject
to Section 4.2(f), pro rata (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due.
(b) In the event of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under this Declaration until the effect of all such Events of Default
with respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Declaration with respect
to the Preferred Securities has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
SECTION 4.4. Payment Procedures. Payments of Distributions
(including Additional Amounts, if applicable) in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to such Clearing Agency in immediately available funds, which shall credit
the relevant Persons' accounts at such Clearing Agency on the relevant
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Holder.
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SECTION 4.5. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense,
and file all United States federal, state and local tax and information returns
and reports required to be filed by or in respect of the Trust. In this regard,
the Administrative Trustees shall (a) prepare and file (or cause to be prepared
and filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Holder the appropriate
Internal Revenue Service Form required to be provided on such form. The
Administrative Trustees shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Holders under the Trust Securities.
SECTION 4.6. Payments under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or an
Owner with respect to the Holder's Preferred Securities) has directly received
pursuant to Section 508 of the Indenture or Section 5.14 of this Declaration.
SECTION 4.7. Liability of the Holder of Common Securities. The
Holder of the Common Securities shall be liable for the debts and obligations of
the Trust as set forth in the Expense Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the Trust
and the contribution by the Depositor pursuant to Section 2.3 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $_____
Liquidation Amount and integral multiples of $_____ in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $_____
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this
Declaration, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a
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Holder, and shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates. At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Depositor shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities Certificates and
transfers and exchanges of Preferred Securities Certificates (the "Securities
Register"), in which the registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided. The Bank shall be the
initial Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6 shall
apply to the Bank also in its role as Securities Registrar, for so long as the
Bank shall act as Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to an Administrative Trustee
and the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by an Administrative Trustee or Securities Registrar in accordance with such
Person's customary practice.
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No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
The Property Trustee shall not be required to ensure or verify
compliance with securities laws, including the Securities Act, Exchange Act and
1940 Act, in connection with transfers and exchanges of Preferred Securities
Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate shall
be surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Holders. The Trustees or the
Securities Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, or any of the Trustees, accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
SECTION 5.8. Maintenance of Office or Agency. The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate Boston Scientific Corporation, One
Boston Scientific Place, Natick, Massachusetts 01760-1537, Attention: ________,
as its principal corporate trust office for such purposes. The
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Administrative Trustees shall give prompt written notice to the Depositor and to
the Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.9. Appointment of Paying Agent. The Paying Agent
shall make Distributions to Holders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the power to receive funds from the
Payment Account for the purpose of making the Distributions referred to above.
The Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Declaration in any material
respect. The Paying Agent shall initially be the Bank, and any co- paying agent
chosen by the Bank, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Bank shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 shall apply to the Bank also in its role as Paying
Agent, for so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor. At
the Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law,
other than a transfer to an Affiliate or in connection with a consolidation or
merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 801 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH
SECTION 5.10 OF THE DECLARATION (AS DEFINED BELOW)".
SECTION 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate. (a) The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
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Preferred Securities Certificates, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner's interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:
(i) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Declaration relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities and shall have no obligations to the Owners thereof;
(ii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Declaration, the provisions
of this Section 5.11 shall control; and
(iii) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that a
notice or other communication to the Holders is required under this Declaration,
unless and until Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustees shall give all such
notices and communications specified herein to be given to Holders to the
Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates. If
(a) the Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates, and the Depositor is unable to locate
a qualified successor, (b) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency or (c) there shall have occurred and be continuing an Event of Default,
then an Administrative Trustee shall
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notify the Clearing Agency and the Clearing Agency shall notify all Owners of
Book-Entry Preferred Securities Securities Certificates and the other Trustees
of the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee or
Securities Registrar of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Holders. The Definitive Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
SECTION 5.14. Rights of Holders. (a) The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.9, and the Holders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration.
The Trust Securities shall have no preemptive or similar rights. When issued and
delivered to Holders of Preferred Securities against payment of the purchase
price therefor, the Preferred Securities will be fully paid and nonassessable
undivided beneficial interests in the Trust Property. The Holders, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in aggregate principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures to
be immediately due, the Holders of at least 25% in aggregate Liquidation Amount
of the Preferred Securities then Outstanding shall have such right by a notice
in writing to the Depositor and the Debenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures shall become immediately due, provided that the payment of principal
and interest on such Debentures shall remain subordinated to the extent provided
in the Indenture.
At any time after such a declaration of acceleration with
respect to the Debentures has been made and before a judgment or decree for
payment of the money due has been obtained by the Debenture Trustee as in the
Indenture provided, the Holders of at least a majority in aggregate Liquidation
Amount of the Preferred Securities, by written notice to the Property Trustee,
the
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Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest) on all of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 513 of the Indenture.
The Holders of at least a majority in aggregate Liquidation
Amount of the Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of Preferred Securities all or part of which is represented by Book-Entry
Preferred Securities Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
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acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Declaration and the Indenture, upon a Debenture Event of Default specified
in Section 501.1 or 501.2 of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
pursuant to Section 508 of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on Debentures having a principal
amount equal to the Liquidation Amount of the Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.14(b) and this
Section 5.14(c), Holders of Preferred Securities shall have no right to exercise
directly any right or remedy available to holders of, or in respect of,
Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as
provided in this Section 6.1, in Sections 5.14, 8.10 and 10.2 and in the
Indenture, and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method or place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures, (ii) waive any past default which is waivable under Section 513
of the Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of Holders of Preferred Securities, prior
to taking any of the foregoing actions, the Trustees shall, at the expense of
the Depositor, obtain an Opinion of Counsel experienced in such
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matters to the effect that such action shall not cause the Trust to be
classified as an association taxable as a corporation for United States federal
income tax purposes.
(c) If any proposed amendment to the Declaration provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Declaration, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Declaration, no amendment to this Declaration may be made if,
as a result of such amendment, it would cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax
purposes.
SECTION 6.2. Notice of Meetings. Notice of all meetings of
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each
such Holder at such Holder's address as it appears in the Securities Register as
of the record date for such meeting. Such notice shall be sent, first-class
mail, at least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
SECTION 6.3. Meetings of Holders of Preferred Securities. No
annual meeting of Holders is required to be held. The Administrative Trustees,
however, shall call a meeting of Holders of Preferred Securities to vote on any
matter upon the written request of the Holders of record of at least 25% of the
aggregate Liquidation Amount of Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on any
matters as to which Holders of Preferred Securities are entitled to vote.
Holders of at least 50% of the Liquidation Amount of Outstanding Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of Holders of Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by
the Holders of record present, in person or by proxy, holding at least a
majority of the Liquidation Amount of Outstanding Preferred Securities held by
the Holders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of Preferred Securities, unless this
Declaration requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights. In respect of any matter as to
which a Holder is entitled to vote, such Holder shall be entitled to one vote
for each $____ of Liquidation Amount Trust Securities held of record by such
Holder.
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SECTION 6.5. Proxies, etc. At any meeting of Holders, any
Holder entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Holders of record shall be entitled to
vote. When Trust Securities are held jointly by several Persons, any one of them
may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent. Any action
which may be taken by Holders at a meeting may be taken without a meeting if
Holders holding a majority of the aggregate Liquidation Amount of the
Outstanding Trust Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision of this
Declaration) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For
the purpose of determining the Holders who are entitled to notice of and to vote
at any meeting or by written consent, or to participate in any Distribution on
the Trust Securities in respect of which a record date is not otherwise provided
for in this Declaration, or for the purpose of any other action, the
Administrative Trustees or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration to be given, made or taken by Holders or Owners
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders or Owners in person or by an 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 an Administrative Trustee and the Property Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 8.1) conclusive in favor of the Trustees, if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by a certificate of a notary public
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or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders and the
Administrative Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee under this
Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records. Upon reasonable prior
written notice to the Administrative Trustees and the Property Trustee, the
records of the Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee,
each severally on behalf of and as to itself alone, hereby represents and
warrants for the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a national bank, duly organized,
validly existing and in good standing under the laws of the United
States;
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(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(c) the Delaware Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Delaware Trustee satisfies for the Trust Section 3807
of the Delaware Business Trust Act;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(e) this Declaration has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(f) execution, delivery and performance of this Declaration
has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and does not
require any approval of stockholders of the Property Trustee or the
Delaware Trustee and such execution, delivery and performance will not
(i) violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Property Trustee or the Delaware Trustee is a party or by which it is
bound, or (iii) violate any law, governmental rule or regulation of the
United States or the State of Delaware, as the case may be, governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Declaration nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of
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Delaware (other than the filing of appropriate certificates in
accordance with the Delaware Business Trust Act); and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware
Trustee, as the case may be, to enter into or perform its obligations
as one of the Trustees under this Declaration.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Holders that the
Trust Securities Certificates issued on the Closing Date by the Trust have been
duly authorized and will have been, duly and validly executed, issued and
delivered by an Administrative Trustee pursuant to the terms and provisions of,
and in accordance with the requirements of, this Declaration and the Holders
will be, as of each such date, entitled to the benefits of this Declaration.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Trustees shall be as expressly provided by
this Declaration and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Declaration
shall require the Trustees to expend or risk their own funds or otherwise to
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers, if they shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.1.
(b) No provision in this Declaration shall be construed to
release an Administrative Trustee from liability for his own grossly negligent
action, his own grossly negligent failure to act, or his own willful misconduct.
To the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) to the Trust or to the Holders, and liabilities
relating thereto, such Administrative Trustee shall not be liable to the Trust
or to any Holder for such Trustee's good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the Holders to
replace such other duties and liabilities of the Administrative Trustees.
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(c) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(c) does not limit the liability of the Trustees expressly set forth
elsewhere in this Declaration or, in the case of the Property Trustee, in the
Trust Indenture Act.
(d) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Declaration, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
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SECTION 8.2. Certain Notices. Within five Business Days after
the occurrence of any Event of Default actually known to a Responsible Officer
of the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.8, notice of such Event of Default to the
Holders, the Administrative Trustees and the Depositor, unless such Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, written notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
SECTION 8.3. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Declaration
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Preferred Holders are entitled
to vote under the terms of this Declaration, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or to
refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to
the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Declaration as it shall deem
advisable and in the best interests of the Holders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
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(d) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice, such counsel may
be counsel to the Depositor or any of its Affiliates, and may include
any of its employees; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any of the Holders pursuant to this
Declaration, unless such Holders shall have offered to the Property
Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, attorneys, custodians or nominees provided that
the Property Trustee shall not be responsible for any misconduct or
negligence or recklessness on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(j) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the
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same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty. The Delaware Trustee shall have the same rights
and benefits as the Property Trustee under this paragraph and paragraphs (a)
through (k) of this Section.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
SECTION 8.5. May Hold Securities. Any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13 and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Trust with the same rights it would have
if it were not a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor
agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (or gross negligence with
respect to the Administrative Trustees) or bad faith; and
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(c) to the fullest extent permitted by applicable law, to
indemnify, defend and hold harmless (i) each Trustee in its individual
capacity, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or
nature whatsoever incurred by such Indemnified Person by reason of or
in connection with the creation, existence, operation or termination of
the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration,
except that no Indemnified Person shall be entitled to be indemnified
pursuant to this Section 8.6 in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence (or gross
negligence with respect to the Administrative Trustees) or willful
misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Declaration.
No Trustee may claim any Lien or charge on any Trust Property
(except for funds not held in trust for the payment of principal of, or premium
if any, or interest on particular securities or any coupons) as a result of any
amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property
Trustee, subject to Section 8.8) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Trust Securities shall have no rights by virtue of this Declaration
in and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the Trust, shall not be deemed wrongful or improper. Neither the Depositor, nor
any Trustee, shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and the Depositor or any
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Trustee may engage or be interested in any financial
or other transaction with the Depositor or any Affiliate of the Depositor, or
may act as depository for, trustee or agent for, or act on any committee or body
of holders of, securities or other obligations of the Depositor or its
Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility
of Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition
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so published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements under the Delaware
Business Trust Act that the Trust have a trustee in the State of Delaware, as
the same now exists or as may hereafter be amended, and that shall act through
one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests. If the Property Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Declaration.
SECTION 8.9. Co-Trustees and Separate Trustee. Unless an Event
of Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event of
Default shall have occurred and be continuing, the Property Trustee alone shall
have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such
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property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder shall be exercised solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act or omission of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
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SECTION 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the Holders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common Holder.
If a Debenture Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Common Holder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Holder, by Act of the Common Holder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Holders, by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture Event
of Default shall have occurred and be continuing, the Common Holder by Act of
the Common Holder delivered to the Administrative Trustee shall promptly appoint
a successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Holder or the Preferred Holders and accepted appointment in the
manner required by Section 8.11, any Holder who has been a Holder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in
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Section 10.8 and shall give notice to the Depositor. Each notice shall include
the name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (b) shall add to or change any of the provisions of this
Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees. Upon the execution and delivery of such
amendment, the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee and upon payment in
full of all undisputed amounts then due and owing to such retiring Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee
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hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Trust. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent
to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.14. Reports by Property Trustee. Within 60 days
after ________ of each year commencing with the first _________ after the first
issuance of Trust Securities pursuant to this Declaration, the Trustee shall
transmit by mail to all Holders of Trust Securities as provided in Section
313(c) of the Trust Indenture Act a brief report dated as of such ________ if
and to the extent required by Section 313(a) of the Trust Indenture Act.
SECTION 8.15. Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents,
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reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. Number of Trustees. (a) The number of Trustees
shall be five, provided that the Holder of all the Outstanding Common Securities
by written instrument may increase or decrease the number of Administrative
Trustees. The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Administrative Trustees shall occur, until
such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Declaration.
SECTION 8.18. Delegation of Power. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a), including making any
governmental filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Declaration, as set forth
herein.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve 45 years from the Closing Date
(the "Expiration Date").
SECTION 9.2. Early Termination. The Trust shall dissolve upon
the first to occur of any of the following events (an "Early Termination
Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Holder of the Common Securities;
(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, distribute Debentures to Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the
discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust shall terminate upon the latest
to occur of the following:
(a) the distribution by the Property Trustee to Holders upon
the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of
all amounts required to be distributed hereunder upon the final payment
of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Holders.
SECTION 9.4. Liquidation. (a) If an Early Termination Event
specified in clause (a), (b) or (d) of Section 9.2 occurs, or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Holder a Like Amount
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of Debentures, subject to Section 9.4(d). Notice of liquidation shall be given
by the Property Trustee by first-class mail, postage prepaid mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Unless Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and the distribution of Debentures to
Holders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Unless Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self- regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, then the Trust
Property shall be liquidated, and the Trust shall be wound up by the Property
Trustee in such manner as the Property Trustee determines subject to applicable
law. In such event,
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on the date of the dissolution of the Trust, Holders will be entitled to receive
out of the assets of the Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid pro rata based upon
Liquidation Amounts. The Holder of the Outstanding Common Securities will be
entitled to receive Liquidation Distributions upon any such liquidation pro
rata, based upon Liquidation Amount, with Holders of Preferred Securities,
except that, if any Debenture Event of Default shall have occurred and be
continuing at the time of payment of the Liquidation Distribution, the Preferred
Securities shall have a priority over the Common Securities with respect to
payment of any amount of Liquidation Distribution.
(e) Following the Expiration Date or an Early Termination
Event and after the completion of the winding up of the affairs of the Trust
pursuant to this Section 9.4, one of the Trustees shall file a certificate of
cancellation with the Delaware Secretary of State.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Article IX. At the request of the Holder of the Common Securities, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Preferred Securities, the Property Trustee or the Delaware Trustee, the
Trust may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any State; provided, that (i)
such successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities ("Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement,
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conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of all Outstanding Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor Person to
be classified as an association taxable as a corporation for United States
federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders. The death or
incapacity, or the dissolution, liquidation, termination, or the bankruptcy of
any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Declaration or dissolve, terminate or annul
the Trust, nor entitle the legal representatives, successors or heirs of such
person or any Holder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment. (a) This Declaration may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Holder of the Common Securities, without the consent of any Holders, (i) to cure
any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Declaration, which shall
not be inconsistent with the other provisions of this Declaration, or (ii) to
modify, eliminate or add to any provisions of this Declaration to such extent as
shall be necessary to ensure that the Trust will not be classified for United
States federal income tax purposes as an association taxable as a corporation at
any times that any Trust Securities are outstanding or to ensure that the Trust
will not be required to register as an investment company under the 1940 Act;
provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Holder, and any
such amendments of this Declaration shall become effective when notice thereof
is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Declaration may be amended by the Trustees and the Holder of
the Common Securities with (i) the consent of Holders representing not less than
a majority Liquidation Amount of the Outstanding Trust
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Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not cause the Trust to be classified as
an association taxable as a corporation for United States federal income tax
purposes or affect the Trust's exemption from status of an investment company
under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Declaration, without the consent of each affected Holder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Declaration
may not be amended to (i) change the amount or timing of any Distribution or
otherwise adversely affect the amount of any Distribution required to be made as
of a specified date or (ii) restrict the right of a Holder to institute suit for
the enforcement of any such payment on or after such date; notwithstanding any
other provision herein, without the unanimous consent of the Holders (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration,
no Trustee shall enter into or consent to any amendment to this Declaration
which would cause the Trust to be classified as an association taxable as a
corporation for United States federal income tax purposes or fail or cease to
qualify for the exemption from status of an investment company under the 1940
Act.
(e) Notwithstanding anything in this Declaration to the
contrary, without the consent of the Depositor, this Declaration may not be
amended in a manner which imposes any additional obligation or liability on the
Depositor.
(f) If any amendment to this Declaration is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Declaration which affects
its own rights, duties or immunities under this Declaration. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Declaration is in compliance with
this Declaration.
SECTION 10.3. Separability. If any provision in this
Declaration or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. Governing Law. THIS DECLARATION AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR AND THE
TRUSTEES WITH RESPECT TO THIS DECLARATION AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
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SECTION 10.5. Payments Due on Non-Business Day. If the date
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day (except as otherwise provided in
Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on
the date fixed for such payment, and no interest shall accrue thereon for the
period after such date.
SECTION 10.6. Successors. This Declaration shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or the Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder (any purported assignment
in contravention of this Section 10.6 being null and void).
SECTION 10.7. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Declaration.
SECTION 10.8. Reports, Notices and Demands. Any report,
notice, demand or other communication which by any provision of this Declaration
is required or permitted to be given or served to or upon any Holder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Common Holder or the Depositor,
to Boston Scientific Corporation, One Boston Scientific Place, Natick,
Massachusetts 01760-1537, Attention: General Counsel, facsimile number: (508)
650-8960. Such notice, demand or other communication to or upon a Holder shall
be deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Declaration is required or permitted to be given or served to
or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to ________; (b) with respect to the Delaware Trustee, to The Chase
Manhattan Bank Delaware, 1201 North Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration; (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of BSC Capital Trust III";
and (d) with respect to the Trust to Boston Scientific Corporation, One Boston
Scientific Place, Natick, Massachusetts 01760- 1537, Attention: General Counsel.
Such notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees
and the Depositor agree for the benefit of the Holders that, until at least one
year and one day after the Trust has been
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terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration.
SECTION 10.10. Application of Trust Indenture Act. (a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Declaration by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Declaration modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Declaration as
so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee
and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
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[Signatures on Next Page]
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IN WITNESS WHEREOF, the undersigned have executed this Amended
and Restated Declaration as of the date first above written.
BOSTON SCIENTIFIC CORPORATION,
as Depositor
By: __________________________________
Name:
Title:
[PROPERTY TRUSTEE], as Property Trustee
By: __________________________________
Name:
Title:
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: __________________________________
Name:
Title:
By: __________________________________
________, as Administrative Trustee
By: __________________________________
________, as Administrative Trustee
By: __________________________________
________, as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST OF
BSC CAPITAL TRUST III
The undersigned Trustees of BSC Capital Trust III (the
"Trust"), pursuant to the Delaware Business Trust Act (12 Del.C. ss.3801, et
seq.), HEREBY CERTIFY:
1. Name. The name of the business trust formed hereby is BSC
Capital Trust III.
2. Delaware Trustee. The name and business address of the
Delaware Trustee of the Trust in the State of Delaware is Chase Manhattan Bank
Delaware, 1201 North Market Street, Wilmington, New Castle County, Delaware
19801, Attn: Corporate Trust Administration.
IN WITNESS WHEREOF, the undersigned being all of the Trustees
of the Trust, have executed this Certificate of Trust as of the 29th day of
September, 1998
DELAWARE TRUSTEE:
Chase Manhattan Bank Delaware
By: /s/ John J. Cashin
---------------------------
Name: John J. Cashin
Title: Trust Officer
TRUSTEE
/s/ Paul W. Sandman
--------------------------------
Name: Paul W. Sandman
TRUSTEE
/s/ Janet M. Kelly
--------------------------------
Name: Janet M. Kelly
<PAGE>
EXHIBIT B
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099
Attention: General Counsel's Office
Re: BSC Capital Trust III ____% Cumulative Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the BSC Capital Trust III ____% Cumulative Trust Preferred Securities (the
"Preferred Securities"), of BSC Capital Trust III, a Delaware business trust
(the "Issuer"), created and continued pursuant to an Amended and Restated
Declaration of Trust between BOSTON SCIENTIFIC CORPORATION. ("Boston
Scientific"), ________, as Property Trustee, The Chase Manhattan Bank Delaware,
as Delaware Trustee, the Administrative Trustees named therein and the holders,
from time to time, of undivided beneficial interests in the assets of the trust.
The payment of distributions on the Preferred Securities, and payments due upon
liquidation of Issuer or redemption of the Preferred Securities, to the extent
the Issuer has funds available for the payment thereof are guaranteed by Boston
Scientific to the extent set forth in a Guarantee Agreement dated ____________,
____ by Boston Scientific with respect to the Preferred Securities. Boston
Scientific and the Issuer propose to sell the Preferred Securities to certain
Underwriters (the "Underwriters") pursuant to an Underwriting Agreement dated
__________, ____ by and among the Underwriters, the Issuer and Boston Scientific
dated ______________, ____ and the Underwriters wish to take delivery of the
Preferred Securities through DTC. _____________ is acting as transfer agent and
registrar with respect to the Preferred Securities (the "Transfer Agent and
Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters, which is expected to occur on or about
__________ __, ____, there shall be deposited with DTC one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's Preferred Securities nominee, Cede & Co.,
representing an aggregate of ____________ Preferred Securities and bearing the
following legend:
<PAGE>
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange,
or payment, and any certificate issued is registered in the name of
Cede & Co. or in 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.
2. The Amended and Restated Declaration of Trust provides for
the voting by holders of the Preferred Securities under certain limited
circumstances (with no provision for revocation of consents or votes by
subsequent holders). The Issuer shall establish a record date for such purposes
and shall, to the extent possible, give DTC notice of such record date not less
than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event
at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance
of rights with respect to, the Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the
amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission of multiple CUSIP numbers (if applicable) that includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
2
<PAGE>
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "BSC Capital Trust III ____% Cumulative Trust Preferred Securities."
3
<PAGE>
8. Distribution payments or other cash payments that are part
of periodic payments with respect to the Preferred Securities evidenced by the
Global Certificate shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same-day funds no later than 2:30 p.m. (Eastern Time) on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Absent any other
arrangements between the Issuer or the Transfer Agent and Registrar and DTC,
such funds shall be wired as follows:
_________________________
_________________________
The Issuer or the Transfer Agent and Registrar shall provide
payment information to a standard announcement service subscribed to by DTC. In
the unlikely event that no such service exists, the Issuer agrees that it or the
Transfer Agent and Registrar shall provide this information directly to DTC in
advance of the record date as soon as the information is available. This
information should be conveyed directly to DTC electronically. If electronic
transmission is not available, absent any other arrangements between the
Transfer Agent and DTC, such information should be sent by telecopy to DTC's
Dividend Department at (212) 709-1723 or (212) 709-1686, and receipt of such
notices shall be confirmed by telephoning (212) 709-1270. Notices to DTC
pursuant to the above by mail or by any other means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
9. DTC shall receive maturity and redemption payments with
respect to the Preferred Securities evidenced by the Global Certificate
allocated with respect to each CUSIP number on the payable date in same-day
funds by 2:30 p.m. (Eastern Time). Absent any other arrangements between the
Transfer Agent and Registrar and DTC, such payments shall be wired as follows:
_________________________
_________________________
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS Paying Agent Operating Procedures, a copy of which has previously
been furnished to the Transfer Agent and Registrar.
10. DTC shall receive all reorganization payments and
CUSIP-level detail resulting from corporate actions (such as tender offers,
remarketings, or mergers) on the first payable
4
<PAGE>
date in same-day funds by 2:30 p.m. (Eastern Time). Absent any other
arrangements between the Transfer Agent and Registrar and DTC, such payments
shall be wired as follows:
_________________________
_________________________
11. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
12. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
13. DTC may discontinue its services as a securities
depository with respect to the Preferred Securities at any time by giving
reasonable notice to the Issuer and the Transfer Agent and Registrar (at which
time DTC will confirm with the Issuer or the Transfer Agent and Registrar the
aggregate number of Preferred Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
14. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
5
<PAGE>
15. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of BSC Capital Trust III.
Very truly yours,
BSC CAPITAL TRUST III, as Issuer
By: _____________________________
Name: ___________________________
Administrative Trustee
-----------------------
as Trustee, Transfer Agent and Registrar
By: ______________________________
Name:_____________________________
Title:____________________________
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: __________________
Authorized Officer
6
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
OTHER THAN IN ACCORDANCE WITH SECTION 5.10
------------------------------------
OF THE DECLARATION (AS DEFINED BELOW)
------------------------------------
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 [_________________]
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BSC CAPITAL TRUST III
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $_________ PER COMMON SECURITY)
BSC CAPITAL TRUST III, a business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that BOSTON SCIENTIFIC
CORPORATION, a Delaware corporation (the "Holder"), is the registered owner of (
) common securities of the Trust, representing beneficial interests of the Trust
and designated the ____% Common Securities (Liquidation Amount $_____ per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of the
Declaration (as defined below) the Common Securities are not transferable and
any attempted transfer hereof shall be null and void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of the Trust,
dated as of _______________, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth therein. The Trust will furnish a copy of the Declaration to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER
AGREES TO BE BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS
THEREUNDER.
<PAGE>
IN WITNESS WHEREOF, the undersigned Administrative Trustee of
the Trust has executed this certificate as of _____________________.
BSC CAPITAL TRUST III
By: _________________________
Name:__________________________
Administrative Trustee
2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
------------------------------------
AGREEMENT, dated as of _________________, between BOSTON
SCIENTIFIC CORPORATION, a Delaware corporation (the "Corporation"), and BSC
CAPITAL TRUST III, a Delaware business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from the Corporation and to issue
and sell ____% Cumulative Trust Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Declaration of the Trust, dated as
of ___________, as the same may be amended from time to time (the
"Declaration"); and
WHEREAS, the Corporation will directly or indirectly own all
of the Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Corporation hereby agrees
shall benefit the Corporation and which purchase the Corporation acknowledges
will be made in reliance upon the execution and delivery of this Agreement, the
Corporation and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation.
Subject to the terms and conditions hereof, the Corporation
hereby irrevocably and unconditionally guarantees to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any costs, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of the
Preferred Securities or such other similar interests, as the case may be. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force or
effect upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid in respect of the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof between the Corporation and
________, as guarantee trustee or under this Agreement for any reason
whatsoever.
This Agreement shall be continuing, irrevocable, unconditional
and absolute.
SECTION 1.3. Waiver of Notice.
The Corporation hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and the
Corporation hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of the
Corporation under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust. There shall be
no obligation of the Beneficiaries to give notice to, or obtain the
consent of, the Corporation with respect to the happening of any of the
foregoing.
2
<PAGE>
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against the
Corporation and the Corporation waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against the Corporation.
SECTION 1.6. Subrogation.
The Corporation shall be subrogated to all (if any) rights of
the Trust in respect of any amounts paid to the Beneficiaries by the Corporation
under this Agreement; provided, however, that the Corporation shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
This Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Corporation and shall inure to the benefit
of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there shall remain any Beneficiary or any Preferred
Securities of any series shall be outstanding, this Agreement may not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Preferred Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex):
3
<PAGE>
BSC CAPITAL TRUST III
c/o BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Facsimile No.: (580) 650-8960
Attention: General Counsel
BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Facsimile No.: (580) 650-8960
Attention: General Counsel
SECTION 2.4. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
BOSTON SCIENTIFIC CORPORATION
By: ___________________________
Name: ___________________________
Title:___________________________
BSC CAPITAL TRUST III
By: ___________________________
Name:____________________________
Administrative Trustee
4
<PAGE>
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT--This Preferred Security is a Global Certificate (as may be defined in
the Declaration hereinafter referred to or in the Amended and Restated
Declaration of Trust, as may be amended from time to time) and is registered in
the name of The Depository Trust Company (the "Depository") or a nominee of the
Depository. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Declaration and no transfer of
this Preferred Security (other than a transfer of this Preferred Security as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
BSC Capital Trust III or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P- [___________]
CUSIP NO.____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BSC CAPITAL TRUST III
____% CUMULATIVE TRUST PREFERRED CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $________ PER PREFERRED SECURITY)
BSC Capital Trust III, a business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
___________________ (the "Holder") is the registered owner of (______) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the BSC Capital Trust III ____% Cumulative
Trust Preferred Securities (Liquidation Amount $_____ per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
<PAGE>
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.4 of the Declaration (as defined below).
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of the Trust, dated as of _______________, as the same may
be amended from time to time, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of Preferred Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by BOSTON SCIENTIFIC CORPORATION, a Delaware corporation,
and________, as guarantee trustee, dated as of _____________ (the "Guarantee"),
to the extent provided therein. The Trust will furnish a copy of the Declaration
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER
AGREES TO BE BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS
THEREUNDER.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of
the Trust has executed this certificate as of __________________.
BSC CAPITAL TRUST III
By: _________________________
Name:________________________
Administrative Trustee
2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee) and irrevocably
appoints agent to transfer this Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:_________
Signature: _________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
EXHIBIT 5.1
SHEARMAN & STERLING
599 Lexington Avenue
New York, New York 10022
April 7, 1999
Boston Scientific Corporation
One Boston Scientific Place
Natick, MA 01760
Ladies and Gentlemen:
We are acting as counsel to Boston Scientific Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing pursuant to Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), by the Company with the Securities and Exchange Commission
(the "Commission") under the Securities Act, of a combined Registration
Statement on Form S-3, as it may be amended (the "Registration Statement"),
relating to the proposed public offering from time to time, together or
separately, of the following securities of the Company with an aggregate initial
public offering price of up to $1,200,000,000: (i) senior debt securities (the
"Senior Debt Securities") and subordinated debt securities (the "Subordinated
Debt Securities" and, together with the Senior Debt Securities, the "Debt
Securities"); (ii) shares of preferred stock, par value $0.01 per share (the
"Preferred Stock"); (iii) depositary shares representing entitlement to all
rights and preferences of a fraction of a share of Preferred Stock of a specific
series (the "Depositary Shares"); (iv) shares of common stock, par value $0.01
per share (the "Common Stock"); (v) warrants to purchase any of the foregoing
Debt Securities, Preferred Stock, Depositary Shares or Common Stock (the
"Warrants"); (vi) stock purchase contracts to purchase shares of Common Stock or
Preferred Stock (the "Stock Purchase Contracts"); (vii) stock purchase units
(the "Stock Purchase Units"), representing ownership of a Stock Purchase
Contract and Trust Preferred Securities (as defined below) or other debt
obligations of third parties; or (viii) guarantees by the Company of preferred
securities ("Trust Preferred Securities") of BSC Capital Trust, BSC Capital
Trust II and BSC Capital Trust III (the "Trust Preferred Securities
Guarantees"). The Debt Securities, Preferred Stock, Depositary Shares, Warrants,
Stock Purchase Contracts, Stock Purchase Units and Trust Preferred Securities
Guarantees are collectively called the "Securities." Any Debt Securities and
Preferred Stock may be convertible into or exchangeable for Common Stock or
other securities.
<PAGE>
2
The Debt Securities will be issued in one or more series pursuant to an
indenture (the "Indenture") to be entered into between the Company and The Chase
Manhattan Bank, Trustee (the "Trustee"). The Warrants will be issued pursuant to
one or more warrant agreements (each a "Warrant Agreement") to be entered into
between the Company and a Warrant Agent. The Depositary Shares will be evidenced
by depositary receipts pursuant to one or more deposit agreements (each a
"Deposit Agreement") to be entered into between the Company and a depositary.
The Trust Preferred Securities Guarantees will be issued pursuant to one or more
trust guarantee agreements to be entered into between the Company and the
Trustee.
We are familiar with the corporate proceedings of the Company to date
with respect to the proposed issuance and sale of the Securities, including
resolutions of the Board of Directors of the Company (the "Resolutions")
authorizing the Indentures and the issuance, offering and sale of the Senior
Debt Securities, the Subordinated Debt Securities and the Common Stock, and we
have examined such corporate records of the Company and such other documents and
certificates as we have deemed necessary as a basis for the opinions hereinafter
expressed.
Our opinions set forth below are limited to the laws of the State of
New York, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware, and we do not express any opinions
herein concerning any other laws.
Based upon and subject to the foregoing, and having regard for such
legal considerations we have deemed relevant, we are of the opinion that:
1. The Indenture has been duly authorized and, when executed and
delivered by the Company pursuant to the authority granted in the Resolutions,
and assuming due authorization, execution and delivery thereof by the Trustee,
will constitute a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms.
2. The Senior Debt Securities have been duly authorized and, when the
final terms thereof have been duly established and approved and when duly
executed by the Company, in each case pursuant to the authority granted in the
Resolutions, and authenticated by the Trustee in accordance with the Indenture
and delivered to and paid for by the purchasers thereof, will constitute valid
and legally binding obligations of the Company entitled to the benefits of the
Indenture.
3. The Subordinated Debt Securities have been duly authorized and, when
the final terms thereof have been duly established and approved and when duly
executed by the Company, in each case pursuant to the authority granted in the
Resolutions, and authenticated by the Trustee in accordance with the Indenture
and delivered to and paid for by the purchasers thereof, will constitute valid
and legally binding obligations of the Company entitled to the benefits of the
Indenture.
<PAGE>
3
4. The Preferred Stock will be validly issued, fully paid and
non-assessable when duly authorized by the Board of Directors and, when the
Board of Directors or a duly authorized committee thereof has taken all
necessary corporate action, including the adoption and filing of a Certificate
of Designations, to approve the issuance of such Preferred Stock, the terms of
the offering and related matters, and such Preferred Stock has been delivered to
and paid for by the purchasers thereof.
5. The Depository Shares with respect to any series of Preferred Stock
will be validly issued, fully paid and non-assessable when duly authorized by
the Board of Directors and, when the Board of Directors or a duly authorized
committee thereof has taken all necessary corporate action to approve the
issuance of such Depository Shares, the terms of the offering thereof and
related matters, and such Depository Shares have been delivered to and paid for
by the purchasers thereof.
6. The Common Stock (including Common Stock issuable upon conversion of
or exchange for any Debt Security) has been duly authorized and, when issued and
delivered pursuant to the authority granted in the Resolutions and against
payment therefor, will be validly issued, fully paid and non-assessable.
7. The Warrants will be legally binding obligations of the Company
entitled to the benefits of the Warrant Agreement when duly authorized by the
Board of Directors and, when the Board of Directors or a duly authorized
committee thereof has taken all necessary corporate action to approve the
issuance of such Warrants, the terms of the offering thereof and related
matters, and such Warrants have been duly delivered and paid for in accordance
with the provisions of the Warrant Agreement.
8. The Stock Purchase Contracts (whether issued separately or as part
of a stock purchase unit) will be legally binding obligations of the Company
when duly authorized by the Board of Directors and, when the Board of Directors
or a duly authorized committee thereof has taken all necessary corporate action
to approve the issuance of such Stock Purchase Contracts, the terms of the
offering thereof and related matters, and such Stock Purchase Contracts have
been delivered to and paid for by the purchasers thereof.
9. The Trust Preferred Securities Guarantees will be legally binding
obligations of the Company when duly authorized by the Board of Directors and,
when the Board of Directors or a duly authorized committee thereof has taken all
necessary corporate action to approve such Trust Preferred Securities
Guarantees, the terms thereof and related matters.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii) general
equitable principles (regardless of whether enforcement is considered in a
<PAGE>
4
proceeding in equity or at law) and (iii) provisions of law that require that a
judgment for money damages rendered by a court in the United States be expressed
only in United States dollars.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ Shearman & Sterling
RBV/FJE
[Letterhead of Prickett, Jones, Elliott & Kristol]
April 2, 1999
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
BSC Capital Trust
BSC Capital Trust II
BSC Capital Trust III
c/o Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
RE: BSC Capital Trust, BSC Capital Trust II, and BSC Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Boston Scientific
Corporation, a Delaware corporation (the "Company"), BSC Capital Trust, a
Delaware business trust ("BSC I"), BSC Capital Trust II, a Delaware business
trust ("BSC II"), and BSC Capital Trust III, a Delaware business trust ("BSC
III" and together with BSC I and BSC II, the "Trusts") in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of BSC I (the "BSC I Certificate"), as
filed in the office of the Secretary of State of the State of Delaware (the
"Secretary of State") on September 25, 1998;
(b) The Certificate of Trust of BSC II (the "BSC II Certificate"), as
filed with the Secretary of State on September 29, 1998;
(c) The Certificate of Trust of BSC III (the "BSC III Certificate"), as
filed
<PAGE>
Boston Scientific Corporation April 2 1999
BSC Capital Trust Page 2
BSC Capital Trust II
BSC Capital Trust III
with the Secretary of State on September 29, 1998;
(d) The Declaration of Trust of BSC I, dated as of September 25, 1998,
among the Company and the trustees of BSC I named therein;
(e) The Declaration of Trust of BSC II, dated as of September 29, 1998,
among the Company and the trustees of BSC II named therein;
(f) The Declaration of Trust of BSC III, dated as of September 29,
1998, among the Company and the trustees of BSC III named therein;
(g) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
undivided beneficial interests in the assets of BSC I (each, an "BSC I Preferred
Security" and collectively, the "BSC I Preferred Securities"), the undivided
beneficial interests in the assets of BSC II (each, an "BSC II Preferred
Security" and collectively, the "BSC II Preferred Securities"), and the
undivided beneficial interests in the assets of BSC III (each, an "BSC III
Preferred Security" and collectively, the "BSC III Preferred Securities"), as
filed by the Company, BSC I, BSC II and BSC III with the Securities and Exchange
Commission on September 30, 1998;
(h) A form of Amended and Restated Declaration of Trust of BSC I, to be
entered into among the Company, the trustees of BSC I named therein, and the
holders, from time to time, of undivided beneficial interests in BSC I (the "BSC
I Declaration");
(i) A form of Amended and Restated Declaration of Trust of BSC II, to
be entered into among the Company, the trustees of BSC II named therein, and the
holders, from time to time, of undivided beneficial interests in BSC II (the
"BSC II Declaration");
(j) A form of Amended and Restated Declaration of Trust of BSC III, to
be entered into among the Company, the trustees of BSC III named therein, and
the holders, from time to time, of undivided beneficial interests in BSC III
(the "BSC III Declaration");
(k) A certificate of good standing for each of BSC I, BSC II and BSC
III, obtained from the Secretary of State.
<PAGE>
Boston Scientific Corporation April 2 1999
BSC Capital Trust Page 3
BSC Capital Trust II
BSC Capital Trust III
Initially capitalized terms used herein and not otherwise defined are
used as defined in the BSC I Declaration, the BSC II Declaration, or the BSC III
Declaration, as applicable.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (k) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that bears upon or is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the BSC
I Declaration, the BSC II Declaration and the BSC III Declaration constitutes
the entire agreement among the parties thereto with respect to the subject
matter thereof, including with respect to the creation, operation and
termination of BSC I, BSC II and BSC III, respectively, and that the BSC I
Declaration, the BSC II Declaration, the BSC III Declaration, the BSC I
Certificate, the BSC II Certificate and the BSC III Certificate are in full
force and effect and have not been amended, (ii) except to the extent provided
in paragraphs 1, 4 and 7 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are signatories to the documents examined by us, (iv) that
no action has been taken to dissolve or terminate BSC I, BSC II or BSC III, (v)
that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vii) the receipt by each Person to
whom a BSC I Preferred Security is to be issued by BSC I (collectively, the "BSC
I Preferred Security Holders") of a
<PAGE>
Boston Scientific Corporation April 2 1999
BSC Capital Trust Page 4
BSC Capital Trust II
BSC Capital Trust III
certificate in the form attached as Exhibit E to the BSC I Declaration
evidencing ownership of such BSC I Preferred Security in the name of such Person
and the payment for the BSC I Preferred Security acquired by it, in accordance
with the BSC I Declaration and the Registration Statement, (viii) the receipt by
each Person to whom a BSC II Preferred Security is to be issued by BSC II
(collectively, the "BSC II Preferred Security Holders") of a certificate in the
form attached as Exhibit E to the BSC II Declaration evidencing ownership of
such BSC II Preferred Security in the name of such Person and the payment for
the BSC II Preferred Security acquired by it, in accordance with the BSC II
Declaration and the Registration Statement, (ix) the receipt by each Person to
whom a BSC III Preferred Security is to be issued by BSC III (collectively, the
"BSC III Preferred Security Holders") of a certificate in the form attached as
Exhibit E to the BSC III Declaration evidencing ownership of such BSC III
Preferred Security in the name of such Person and the payment for the BSC III
Preferred Security acquired by it, in accordance with the BSC III Declaration
and the Registration Statement, and (x) that the BSC I Preferred Securities are
issued and sold to the BSC I Preferred Security Holders in accordance with the
BSC I Declaration and the Registration Statement, that the BSC II Preferred
Securities are issued and sold to the BSC II Preferred Security Holders in
accordance with the BSC II Declaration and the Registration Statement, and that
the BSC III Preferred Securities are issued and sold to the BSC III Preferred
Security Holders in accordance with the BSC III Declaration and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. This opinion is expressed only as of
the date hereof and is rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect. We disclaim any
undertaking to advise you of any subsequent changes in the facts or in the
applicable law.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. BSC I has been duly created and is validly existing in good standing
as a business trust under the Delaware Business Trust Act, 12 Del. C. ss.3801,
et seq.
<PAGE>
Boston Scientific Corporation April 2 1999
BSC Capital Trust Page 5
BSC Capital Trust II
BSC Capital Trust III
2. The BSC I Preferred Securities, when issued in accordance with the
BSC I Declaration and the Registration Statement, will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of BSC I.
3. The BSC I Preferred Security Holders, as beneficial owners of BSC I,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the BSC I Capital
Security Holders may be obligated to make payments as set forth in the BSC I
Declaration.
4. BSC II has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
ss.3801, et seq.
5. The BSC II Preferred Securities, when issued in accordance with the
BSC II Declaration and the Registration Statement, will represent valid and,
subject to the qualifications set forth in paragraph 6 below, fully paid and
nonassessable undivided beneficial interests in the assets of BSC II.
6. The BSC II Preferred Security Holders, as beneficial owners of BSC
II, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the BSC II Preferred
Security Holders may be obligated to make payments as set forth in the BSC II
Declaration.
7. BSC III has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
ss.3801, et seq.
8. The BSC III Preferred Securities, when issued in accordance with the
BSC III Declaration and the Registration Statement, will represent valid and,
subject to the qualifications set forth in paragraph 9 below, fully paid and
nonassessable undivided beneficial interests in the assets of BSC III.
9. The BSC III Preferred Security Holders, as beneficial owners of BSC
III, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the BSC III Preferred
Security Holders may be obligated to make payments as set forth in the BSC III
Declaration.
<PAGE>
Boston Scientific Corporation April 2 1999
BSC Capital Trust Page 6
BSC Capital Trust II
BSC Capital Trust III
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Prickett, Jones, Elliott & Kristol
TAM/nmh
EXHIBIT 12.1
BOSTON SCIENTIFIC CORPORATION
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES (Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------------------
1998 1997 1996 1995 1994
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense $67,573 $14,285 $11,518 $9,591 $8,378
Capitalized interest 4,460 4,976
Debt issuance costs 1,675 65 501
Interest portion of rental expense 16,361 14,354 8,534 5,802 5,370
-------------------------------------------------------------------
Total fixed charges $90,069 $33,680 $20,553 $15,393 $13,748
===================================================================
Earnings:
Income (loss) before income taxes
and cumulative effect of
change in accounting $(275,314) $215,131 $303,330 $62,678 $219,703
Fixed charges per above 90,069 33,680 20,553 15,393 13,748
Less: capitalized interest 4,460 4,976
===================================================================
Total earnings, as adjusted $(189,705) $243,835 $323,883 $78,071 $233,451
===================================================================
Ratio of earnings to fixed charges 7.24 15.76 5.07 16.98
===================================================================
Coverage deficiency (1) $(279,774)
==========
Supplemental pro forma coverage deficiency (2) $(345,507)
==========
</TABLE>
(1) Includes noncash special charges of $646 million recorded in connection
with the acquisition of Schneider Worldwide and other merger-related
initiatives.
(2) Reflects the coverage deficiency as if the acquisition of Schneider
Worldwide occurred at the beginning of 1998, with pro forma adjustments to
give effect to amortization of intangibles, an increase in interest expense
on acquisition financing and certain other adjustments.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement (Form S-3 No. 333-64887) and related
Prospectus of Boston Scientific Corporation, BSC Capital Trust, BSC Capital
Trust II and BSC Capital Trust III and to the incorporation by reference therein
of our reports dated February 16, 1999, with respect to the consolidated
financial statements of Boston Scientific Corporation incorporated by reference
in its Annual Report (Form 10-K) for the year ended December 31, 1998 and the
related financial statement schedule included therein, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Boston, Massachusetts
April 2, 1999
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in amendment No. 1 to the
registration statement (No. 333-64887) on Form S-3 of Boston Scientific
Corporation of our report dated May 22, 1998, with respect to the combined
balance sheets of Schneider Worldwide, formerly a business of Pfizer Inc., as of
December 31, 1997 and 1996, and the related combined statements of income and
cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in the Form 8-K/A2 of Boston Scientific Corporation
dated March 30, 1999, and to the reference to our firm under the heading
"Experts."
/s/ KPMG LLP
---------------------
KPMG LLP
New York, New York
April 6, 1999
