Exhibit 4.1
FLUOR CORPORATION
AND
THE BANK OF NEW YORK,
TRUSTEE
SENIOR DEBT SECURITIES
INDENTURE
DATED AS OF ____________________________, 20__
CROSS REFERENCE SHEET*
Provisions of Sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended, and the Indenture dated as of
_________________, 20__ between Fluor Corporation and The Bank of New York, as
Trustee.
SECTION OF
SECTION OF ACT INDENTURE
-------------- ---------
310(a)(1) 6.10
310(a)(2) 6.10
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 6.10
310(b) 6.10
310(c) N/A
311(a) 6.11
311(b) 6.11
311(c) N/A
312(a) 4.01
312(b) 4.02(b)
312(c) 4.02(c)
313(a) 6.06
313(b) 6.06
313(c) 6.06
313(d) 6.06
314(a) 3.04 and 4.03
314(b) N/A
314(c)(1) 2.04 and 11.05
314(c)(2) 2.04 and 11.05
314(c)(3) N/A
314(d) N/A
314(e) 11.05
315(a) 6.01(b)
315(b) 6.05
315(c) 6.01(a)
315(d) 6.01(c)
315(e) 5.10
316(a)(1)(A) 5.08
316(a)(1)(B) 5.09
316(a)(2) N/A
316(b) 5.06
316(c) 2.07
317(a)(1) 5.02
317(a)(2) 5.02
317(b) 3.02 and 3.03
318(a) 11.07
*This cross reference sheet shall not, for any purpose, be deemed to be a part
of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act
of 1939, as amended, which provides that the provisions of Sections 310 through
317 of such Act are a part of and govern every qualified indenture, whether or
not physically contained therein.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ................................................................................1
SECTION 1.01 Certain Terms Defined............................................................................1
ARTICLE 2 SECURITIES..................................................................................5
SECTION 2.01 Forms Generally..................................................................................5
SECTION 2.02 Form of Trustee's Certificate of Authentication..................................................5
SECTION 2.03 Amount Unlimited; Issuable in Series.............................................................6
SECTION 2.04 Authentication and Delivery of Securities........................................................8
SECTION 2.05 Execution of Securities..........................................................................9
SECTION 2.06 Certificate of Authentication...................................................................10
SECTION 2.07 Denomination and Date of Securities; Payments of Interest.......................................10
SECTION 2.08 Registration, Registration of Transfer and Exchange.............................................11
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.......................................12
SECTION 2.10 Cancellation of Securities......................................................................13
SECTION 2.11 Temporary Securities............................................................................13
SECTION 2.12 Securities in Global Form.......................................................................13
SECTION 2.13 CUSIP Numbers...................................................................................14
ARTICLE 3 COVENANTS OF THE COMPANY...................................................................14
SECTION 3.01 Payment of Principal and Interest...............................................................14
SECTION 3.02 Offices for Payment, Etc........................................................................14
SECTION 3.03 Paying Agents...................................................................................15
SECTION 3.04 Officers' Certificate...........................................................................15
SECTION 3.05 Calculation of Original Issue Discount..........................................................16
ARTICLE 4 SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY..........................................16
SECTION 4.01 Company to Furnish Trustee Information as to Names and Addresses of Securityholders.............16
SECTION 4.02 Reports by the Company..........................................................................17
ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT............................18
SECTION 5.01 Event of Default Defined; Acceleration of Maturity; Waiver of Default...........................18
SECTION 5.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt...................................20
SECTION 5.03 Application of Proceeds.........................................................................21
SECTION 5.04 Restoration of Rights on Abandonment of Proceedings.............................................22
SECTION 5.05 Limitations on Suits by Securityholders.........................................................22
SECTION 5.06 Unconditional Right of Securityholders to Institute Certain Suits...............................23
SECTION 5.07 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.........................23
SECTION 5.08 Control by Securityholders......................................................................23
SECTION 5.09 Waiver of Past Defaults.........................................................................23
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SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs....................................24
SECTION 5.11 Suits for Enforcement...........................................................................24
ARTICLE 6 CONCERNING THE TRUSTEE.....................................................................24
SECTION 6.01 Duties of Trustee...............................................................................24
SECTION 6.02 Rights of Trustee...............................................................................25
SECTION 6.03 Individual Rights of Trustee....................................................................27
SECTION 6.04 Trustee's Disclaimer............................................................................27
SECTION 6.05 Notice of Defaults..............................................................................27
SECTION 6.06 Reports by Trustee to Holders...................................................................27
SECTION 6.07 Compensation and Indemnity......................................................................27
SECTION 6.08 Replacement of Trustee..........................................................................28
SECTION 6.09 Successor Trustee by Merger.....................................................................29
SECTION 6.10 Eligibility; Disqualification...................................................................29
SECTION 6.11 Preferential Collection of Claims Against Company...............................................29
ARTICLE 7 CONCERNING THE SECURITYHOLDERS.............................................................29
SECTION 7.01 Evidence of Action Taken by Securityholders.....................................................29
SECTION 7.02 Proof of Execution of Instruments...............................................................30
SECTION 7.03 Holders to Be Treated as Owners.................................................................30
SECTION 7.04 Securities Owned by Company Deemed Not Outstanding..............................................30
SECTION 7.05 Right of Revocation of Action Taken.............................................................30
ARTICLE 8 SUPPLEMENTAL INDENTURES....................................................................31
SECTION 8.01 Supplemental Indentures Without Consent of Securityholders......................................31
SECTION 8.02 Supplemental Indentures with Consent of Securityholders.........................................32
SECTION 8.03 Effect of Supplemental Indenture................................................................33
SECTION 8.04 Documents to Be Given to Trustee................................................................33
SECTION 8.05 Notation on Securities in Respect of Supplemental Indentures....................................33
ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE..................................................33
SECTION 9.01 Company May Consolidate, Etc. on Certain Terms..................................................33
SECTION 9.02 Successor Person Substituted....................................................................34
SECTION 9.03 Opinion of Counsel to Trustee...................................................................34
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS...................................34
SECTION 10.01 Satisfaction and Discharge of Indenture........................................................34
SECTION 10.02 Application by Trustee of Funds Deposited for Payment of Securities............................37
SECTION 10.03 Repayment of Amounts Held by Paying Agent......................................................38
SECTION 10.04 Return of Unclaimed Amounts Held by Trustee and Paying Agent...................................38
SECTION 10.05 Reinstatement of Company's Obligations.........................................................38
ARTICLE 11 MISCELLANEOUS PROVISIONS...................................................................38
SECTION 11.01 Incorporators, Shareholders, Officers and Directors of Company
Exempt from Individual Liability ..............................................................38
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SECTION 11.02 Provisions of Indenture for the Sole Benefit of Parties and Securityholders....................39
SECTION 11.03 Successors and Assigns of Company Bound by Indenture...........................................39
SECTION 11.04 Notices and Demands on Company, Trustee and Securityholders....................................39
SECTION 11.05 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein.............40
SECTION 11.06 Payments Due on Saturdays, Sundays and Holidays................................................41
SECTION 11.07 Conflict of Any Provision of Indenture with Trust Indenture Act................................41
SECTION 11.08 New York Law to Govern.........................................................................41
SECTION 11.09 Counterparts...................................................................................41
SECTION 11.10 Effect of Headings; Gender.....................................................................41
ARTICLE 12 REDEMPTION OF SECURITIES AND SINKING FUNDS.................................................41
SECTION 12.01 Applicability of Article.......................................................................41
SECTION 12.02 Notice of Redemption; Partial Redemptions......................................................41
SECTION 12.03 Payment of Securities Called for Redemption....................................................43
SECTION 12.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption..................43
SECTION 12.05 Mandatory and Optional Sinking Funds...........................................................43
SECTION 12.06 Repayment at the Option of the Holders.........................................................46
SECTION 12.07 Conversion Arrangement on Call for Redemption..................................................46
ARTICLE 13 CONVERSION OF SECURITIES...................................................................47
SECTION 13.01 Applicability of Article.......................................................................47
SECTION 13.02 Right of Holders to Convert Securities into Common Shares......................................47
SECTION 13.03 Issuance of Common Shares on Conversions.......................................................47
SECTION 13.04 No Payment or Adjustment for Interest or Dividends.............................................48
SECTION 13.05 Adjustment of Conversion Price.................................................................49
SECTION 13.06 No Fractional Shares to Be Issued..............................................................52
SECTION 13.07 Preservation of Conversion Rights upon Consolidation, Merger, Sale or Conveyance...............52
SECTION 13.08 Notice to Holders of the Securities of a Series Prior to Taking Certain Types of Action........53
SECTION 13.09 Covenant to Reserve Shares for Issuance on Conversion of Securities............................53
SECTION 13.10 Compliance with Governmental Requirements......................................................54
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued upon Conversion...........................54
SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions.........................................54
SECTION 13.13 Conversion of Securities into Preferred Shares or Other Securities.............................54
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This INDENTURE (this "INDENTURE"), dated as of _________________, 20__
between FLUOR CORPORATION, a Delaware corporation (the "COMPANY"), and THE BANK
OF NEW YORK, a New York banking corporation, as trustee (the "TRUSTEE").
RECITALS
A. The Company has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"SECURITIES") to be issued in one or more Series.
B. All things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed for the equal and
ratable benefit of the Holders from time to time of the Securities or of Series
thereof as follows.
ARTICLE 1
DEFINITIONS
SECTION 1.01 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms (except as herein otherwise expressly provided or unless the context
otherwise clearly requires) used in this Indenture that are defined in the Trust
Indenture Act or the definitions of which in the Securities Act are referred to
in the Trust Indenture Act, including terms defined therein by reference to the
Securities Act, shall have the meanings assigned to such terms in the Trust
Indenture Act and the Securities Act as in force at the date of this Indenture.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with GAAP. The words "HEREIN",
"HEREOF" and "HEREUNDER" and other words of similar import refer to this
Indenture as a whole, as supplemented and amended from time to time, and not to
any particular Article, Section or other subdivision. The terms defined in this
Article 1 have the meanings assigned to them in this Article 1 and include the
plural as well as the singular.
"BOARD OF DIRECTORS" means either the Board of Directors of the Company
or any duly authorized committee of that Board or any duly authorized committee
created by that Board.
"BUSINESS DAY", except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment or
place of publication means any day, other than a Saturday, Sunday or day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act, or if at any
time after the execution and
delivery of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"COMMON SHARES" means the shares of common stock, par value $1.00 per
share, of the Company as they exist on the date of this Indenture, or any other
shares of capital stock of the Company into which such shares shall be
reclassified or changed.
"COMPANY" means the Person identified as the "Company" in the first
paragraph hereof until a successor corporation shall have become such pursuant
to the applicable provisions hereof, and thereafter "Company" shall mean such
successor corporation.
"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 at the date of execution of this Indenture is
located at 101 Barclay Street, New York, New York 10286, Attention: Corporate
Trust Officer.
"DEFAULTED INTEREST" has the meaning specified in Section 2.07.
"DEFEASANCE" has the meaning specified in Section 10.01(b).
"DEPOSITORY", with respect to Securities of any Series for which the
Company shall determine that such Securities will be issued as a Depository
Security, means The Depository Trust Company or another clearing agency or any
successor registered under the Securities Exchange Act or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to Sections 2.03 and 2.12.
"DEPOSITORY SECURITY", with respect to any Series of Securities, means
a Security executed by the Company and authenticated and delivered by the
Trustee to the Depository or pursuant to the Depository's instruction, all in
accordance with this Indenture and pursuant to a resolution of the Board of
Directors or an indenture supplemental hereto as contemplated by Section 2.03,
which shall be registered as to principal and interest in the name of the
Depository or its nominee and shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such Series.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"GAAP" means such accounting principles as are generally accepted at
the time of any computation hereunder.
"GOVERNMENT OBLIGATIONS", unless otherwise specified pursuant to
Section 2.03, means securities that are (i) direct obligations of the United
States government or (ii) obligations of a Person controlled or supervised by,
or acting as an agency or instrumentality of, the United States government, the
payment of which obligations is unconditionally guaranteed by such government,
and that, in either case, are full faith and credit obligations of such
government and are not callable or redeemable at the option of the issuer
thereof.
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"HOLDER", "HOLDER OF SECURITIES", "REGISTERED HOLDER", "SECURITYHOLDER"
or other similar terms mean the Person in whose name at the time a particular
Security is registered in the Security register.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of particular
Series of Securities established as contemplated by Section 2.03.
"INSTRUCTIONS" means instructions acceptable to the Trustee issued
pursuant to the written order of the Company, signed by its chief executive
officer, president or any vice president, and by its treasurer, secretary or any
assistant treasurer or assistant secretary. Instructions need not comply with
the provisions of Section 11.05.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by the chief executive officer, president or any vice president and by
the treasurer, controller, secretary, or any assistant treasurer or any
assistant secretary of the Company and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 11.05.
"OPINION OF COUNSEL" means a written opinion of legal counsel who may
be an employee of or counsel to the Company and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the statements
provided for in Section 11.05, if and to the extent required hereby.
"ORIGINAL ISSUE DATE" of any Security means the date set forth as such
on such Security.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"OUTSTANDING", when used with reference to Securities of any Series as
of any particular time, subject to the provisions of Section 7.04, means all
Securities of that Series authenticated and delivered under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which the necessary funds in the required currency shall
have been deposited in trust with the Trustee or with any Paying Agent
other than the Company, or shall have been set aside, segregated and
held in trust by the Company for the holders of such Securities if the
Company shall act as its own Paying Agent, provided that if such
securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice;
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of
Section 2.09, except with respect to
3
any such Security as to which proof satisfactory to the Trustee and the
Company is presented that such Security is held by a person in whose
hands such Security is a legal, valid and binding obligation of the
Company;
(d) Securities converted into Common Shares or Preferred
Shares in accordance with or as contemplated by this Indenture; and
(e) Securities with respect to which the Company has effected
defeasance as provided in Article 10.
"PAYING AGENT" means any Person, which may include the Company,
authorized by the Company to pay the principal of or interest, if any, on any
Security of any Series on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a Series from
time to time, during which any or all of the specific terms of the Securities,
including the rate or rates of interest, if any, thereon, the maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents upon the issuance of such
Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.02.
"PREFERRED SHARES" means any shares of capital stock issued by the
Company that are entitled to a preference or priority over the Common Shares
upon any distribution of the Company's assets, whether by dividend or upon
liquidation.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof shall be deemed to include "and premium, if
any".
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee including any vice
president, assistant vice president, assistant secretary, senior trust officer,
trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the individuals
who at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred at the Corporate Trust Office because of his or her
knowledge of and familiarity with the particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as amended, as in
force at the date as of which this Indenture was originally executed.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, as in force at the date as of which this Indenture was originally
executed.
4
"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"SERIES" or "SERIES OF SECURITIES" means all Securities of a similar
tenor authorized by a particular resolution of the Board of Directors or in one
or more indentures supplemental hereto.
"TRUST INDENTURE ACT", except as otherwise provided in Sections 8.01
and 8.02, means the Trust Indenture Act of 1939, as amended, as in force at the
date as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as the "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the applicable provisions hereof, and thereafter "Trustee" shall mean each
Person who is then a Trustee hereunder. If at any time there is more than one
such Person, "Trustee" as used with respect to the Securities of any Series
means the Trustee with respect to Securities of that Series.
"UNITED STATES OF AMERICA" means the United States of America,
including the states and the District of Columbia, its territories, possessions,
the Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"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 of "vice president."
ARTICLE 2
SECURITIES
SECTION 2.01 Forms Generally. The Securities of each Series shall be
substantially in such form, including temporary or definitive global form, as
shall be established by or pursuant to a resolution of the Board of Directors or
in one or more indentures supplemental hereto or, in the case of a Periodic
Offering, Instructions, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities as evidenced by their
execution of the Securities.
The definitive Securities may be printed or reproduced in any other
manner, all as determined by the officers executing such Securities as evidenced
by their execution of such Securities.
SECTION 2.02 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
5
THE BANK OF NEW YORK, as Trustee
By:
----------------------------
Authorized Signatory
-- or --
THE BANK OF NEW YORK, as Trustee
By:
----------------------------, as
Authentication Agent
By:
----------------------------
Authorized Signatory
SECTION 2.03 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, or in the case of a Periodic Offering, Instructions, prior
to the issuance of Securities of any Series:
(a) the title of the Securities of the Series, which shall
distinguish the Securities of the Series from all other Securities
issued by the Company;
(b) any limit upon the aggregate principal amount of the
Securities of the Series that may be authenticated and delivered under
this Indenture, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, other
Securities of the Series pursuant to Section 2.08, 2.09, 2.11, 8.05 or
12.03;
(c) if other than 100% of their principal amount, the
percentage of their principal amount at which the Securities of the
Series will be offered for sale to the public;
(d) the date or dates on which the principal of the Securities
of the Series is payable or the method of determination thereof;
(e) the rate or rates, which may be fixed or variable, or the
method or methods of determination thereof (including any procedures to
vary or reset such rate or rates), at which the Securities of the
Series shall bear interest, if any, the date or dates from which such
interest shall accrue, the interest payment dates on which such
interest shall be payable or the manner of determination of such
interest payment dates and the record dates for the determination of
Holders to whom interest is payable;
6
(f) the place or places where the principal and interest, if
any, on Securities of the Series shall be payable if other than as
provided in Section 3.02;
(g) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the Series
may be redeemed, in whole or in part, at the option of the Company;
(h) if other than the principal amount thereof, the portion of
the principal amount of Securities of the Series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 5.01 or provable in bankruptcy pursuant to Section 5.02;
(i) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the Series whether pursuant to any sinking fund
or analogous provisions or pursuant to other provisions set forth
therein or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and
conditions upon which Securities of the Series shall be redeemed,
purchased or repaid, in whole or in part;
(j) the right, if any, of the Company to extend the interest
payment periods or defer the payment of interest and the duration of
such extension or deferral;
(k) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the Series
shall be issuable;
(l) the form of the Securities, including such legends as
required by law or as the Company deems necessary or appropriate and
the form of any temporary global security that may be issued;
(m) whether, and under what circumstances, the Securities of
any Series shall be convertible into other securities of the Company
and, if so, the terms and conditions upon which such conversion will be
effected, including the initial conversion price or rate, the
conversion period and other provisions in addition to or in lieu of
those described herein;
(n) the currency or currencies in which payment of the
principal of and interest on, Securities of such Series shall be
payable;
(o) the terms of any repurchase or remarketing rights;
(p) if other than the Trustee, any trustees, authenticating
agents, Paying Agents, transfer agents or registrars or any other
agents with respect to the Securities of such Series;
(q) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.01;
7
(r) whether the Securities of such Series are to be issuable
in whole or in part in the form of one or more Depository Securities
and, in such case, the Depository for such Securities;
(s) any restrictive covenants or additional Events of Default
that will apply to the Securities of such Series, or any changes to the
Events of Default set forth in Section 5.01 that will apply to the
Securities of such Series, which may consist of establishing different
terms or provisions from those set forth in Article 3 or Section 5.01
or eliminating any such Event of Default with respect to the Securities
of such Series;
(t) the application, if any, of Section 10.01(b) to the
Securities of such Series;
(u) any and all additional, eliminated or changed terms that
shall apply to the Securities of such Series, including any terms which
may be required by or advisable under United States laws or regulations
(including the Securities Act and the rules and regulations promulgated
thereunder) or advisable in connection with the marketing of Securities
of such Series; and
(v) whether the Securities of such Series shall be subject to
a Periodic Offering.
All Securities of any one Series shall be substantially identical
except as to denomination and except as otherwise may be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. All Securities of any one Series need not be issued at the
same time and, unless otherwise provided, a Series may be reopened for issuances
of additional Securities of such Series.
SECTION 2.04 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series executed by the Company to the
Trustee for authentication, together with a written order of the Company, signed
by its chief executive officer, president or any vice president, and by its
treasurer, secretary, or any assistant treasurer or any assistant secretary for
the authentication and delivery of such Securities and the Trustee, in
accordance with such order of the Company, shall authenticate and deliver such
Securities. In the case of Securities offered in a Periodic Offering, however,
the Trustee shall authenticate and deliver such Securities from time to time in
accordance with Instructions or such other procedures acceptable to the Trustee
as may be specified by or pursuant to a supplemental indenture or the written
order of the Company delivered to the Trustee prior to the time of the first
authentication of Securities of such Series. At the time of the first
authentication of Securities of a Series that provides for the issuance of
Securities of that Series from time to time, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and subject to Section 6.01 shall be fully
protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of
Directors relating to such Series, in each case certified by the
secretary or an assistant secretary of the Company;
(b) a supplemental indenture, if any;
8
(c) an Officers' Certificate setting forth the form and terms
of the Securities of such Series as required pursuant to Sections 2.01
and 2.03, respectively, and prepared in accordance with Section 11.05;
and
(d) an Opinion of Counsel, prepared in accordance with Section
11.05, which shall state:
(i) that the form or forms and terms of such
Securities have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental
indenture as permitted by Sections 2.01 and 2.03 in conformity
with the provisions of this Indenture; and
(ii) that such Securities have been duly authorized
and, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any
conditions specified in such opinion of counsel, will
constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
With respect to Securities of a Series subject to a Periodic Offering, however,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the written order of the
Company, Opinion of Counsel, Officers' Certificate and other documents delivered
pursuant to this Section 2.04 at or prior to the time of the first
authentication of Securities of such Series unless and until such written order,
Opinion of Counsel, Officers' Certificate or other documents have been
superseded or revoked or expire by their terms.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section 2.04 if the issue of such Securities pursuant
to this Indenture will affect the Trustee's own rights, duties or immunities
under this Indenture in a manner not reasonably acceptable to the Trustee.
SECTION 2.05 Execution of Securities. The Securities shall be signed on
behalf of the Company by its chief executive officer, president or any vice
president and its treasurer, secretary or any assistant treasurer or assistant
secretary, under its corporate seal. Such signatures may be the manual or
facsimile signatures of such officers. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and
9
delivered or disposed of as though the person who signed such Security had not
ceased to be such officer of the Company. Any Security may be signed on behalf
of the Company by such individuals as, at the actual date of the execution of
such Security, shall be the proper officers of the Company, although at the date
of the execution and delivery of this Indenture any such individual was not such
an officer.
SECTION 2.06 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form set
forth in Section 2.02 and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.07 Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable in denominations as shall be specified as
contemplated by Section 2.03. In the absence of any such specification with
respect to the Securities of any Series, Securities shall be issuable in
denominations of $1,000 and any integral multiple thereof, and interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Securities
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee as evidenced by its execution and
authentication thereof.
Each Security shall be dated the date of its authentication.
Unless otherwise provided as contemplated by Section 2.03, interest on
any Security that is payable, and is punctually paid or duly provided for, on
any interest payment date shall be paid to the person in whose name that
Security, or one or more predecessor securities, is registered at the close of
business on the regular record date for the payment of such interest.
The term "RECORD DATE" as used with respect to any interest payment
date (except for a date for payment of defaulted interest) means the date
specified as such in the terms of the Securities of any particular Series or, if
no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series that is payable but not
punctually paid or duly provided for ("DEFAULTED INTEREST") on any interest
payment date shall forthwith cease to be payable to the Registered Holder on the
relevant record date by virtue of such Holder having been a Holder on such
record date. Such defaulted interest may be paid by the Company, at its election
in each case, as provided in clause (a) or clause (b) below:
(a) The Company may elect to make payment of any defaulted
interest to the persons in whose names any such Securities (or their
respective predecessor Securities) are registered at the close of
business on a special record date for the payment of such defaulted
interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on
10
each Security of such Series and the date of the proposed payment and
at the same time the Company shall deposit with the Trustee funds equal
to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment.
Such funds when deposited shall be held in trust for the benefit of the
Persons entitled to such defaulted interest as provided in this clause
(a). Thereupon the Trustee promptly shall fix a special record date for
the payment of such defaulted interest in respect of Securities of such
Series, which shall be not more than 15 nor less than ten days prior to
the date of the proposed payment. The Trustee promptly shall 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 thereof to be mailed,
first class postage prepaid, to each Registered Holder at his address
as it appears in the Security register, not less than ten days prior to
such special record date. Notice of the proposed payment of such
defaulted interest and the special record date therefor having been
mailed as aforesaid, such defaulted interest in respect of Securities
of such Series shall be paid to the persons in whose names such
Securities (or their respective predecessor Securities) are registered
on such special record date and such defaulted interest shall no longer
be payable pursuant to the following clause (b).
(b) The Company may make payment of any defaulted interest on
the Securities of any Series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Securities of that Series 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
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.07, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.08 Registration, Registration of Transfer and Exchange. The
Company will cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.02 a register or registers (the "SECURITY
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Company will provide for the registration and the registration of transfer
of the Securities. The Trustee is hereby appointed Security registrar for
purposes of registering, and registering transfers of, the Securities.
Upon surrender for registration of transfer of any Security of any
Series at any such office or agency to be maintained for the purpose as provided
in Section 3.02, the Company shall execute, and the Trustee shall authenticate
and make available for delivery in the name of the transferee or transferees, a
new Security or Securities of the same Series and of like tenor and containing
the same terms (other than the principal amount thereof, if more than one
Security is executed, authenticated and delivered with respect to any security
so presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
11
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange, if so required by the Company or the Trustee, shall be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee, duly executed by the Holder thereof or his attorney
and 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 an amount
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 2.11, 8.05 or 12.03 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security during a 15-day period prior to the day of mailing of
the relevant notice of redemption or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not
redeemed.
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated or defaced or
be destroyed, lost or stolen, the Company shall execute, and upon the written
request of any officer of the Company, the Trustee shall authenticate and make
available for delivery a new Security of the same Series and of like tenor and
principal amount and with the same terms and conditions, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Company may require the
payment of an amount sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses, including the
reasonable fees and expenses of the Trustee, connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company, instead of issuing a substitute Security, may pay or
authorize the payment of the same without surrender thereof except in the case
of a mutilated or defaced Security. The applicant for such payment shall furnish
to the Company and to the Trustee such security or indemnity as any of them may
require to save each of them harmless. In every case of destruction, loss or
theft, the applicant also shall furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
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Every substitute Security of any Series issued pursuant to the provisions
of this Section 2.09 by virtue of the fact that any Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of and shall be
subject to all the limitations of rights set forth in this Indenture equally and
proportionately with any and all other Securities of such Series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies, notwithstanding any law or statute to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 2.10 Cancellation of Securities. All Securities surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if surrendered to the
Company or any agent of the Company or the Trustee shall be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by the provisions of this Indenture. The Company at any time may
deliver 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. The Trustee or its agent
shall dispose of cancelled Securities held by it and deliver a certificate of
disposition to the Company. If the Company shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless the same are delivered to the
Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any Series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities for such
Series, which may be printed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee. Temporary Securities of any Series
may be issued in any authorized denomination and substantially in the form of
the definitive Securities of such Series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for that purpose pursuant to
Section 3.02, and the Trustee shall authenticate and make available for delivery
in exchange for such temporary Securities of such Series a like aggregate
principal amount of definitive Securities of the same Series of authorized
denominations. Until so exchanged, the temporary Securities of any Series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such Series.
SECTION 2.12 Securities in Global Form. If Securities of a Series are
issuable in global form, as specified as contemplated by Section 2.03, then,
notwithstanding the provisions of
13
Sections 2.03(k) and Section 2.07, 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
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby from time to time may be reduced 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 may 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 2.04. Subject to the provisions
of Section 2.04, the Trustee shall deliver and redeliver any Security in
definitive global form in the manner and upon written instructions given by the
Person or Persons specified therein or in the applicable Company order. If a
Company order pursuant to Section 2.04 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 11.05 and need not be accompanied by an Opinion of
Counsel.
Unless otherwise specified as contemplated by Section 2.03, payment of
principal of and any interest on any Security in definitive global form shall be
made to the Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the Trustee
and any agent of the Company and the Trustee shall treat a Person as the Holder
of such principal amount of outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of the Holder of
such definitive global Security.
SECTION 2.13 CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers if then generally in use and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders. Any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities. No such redemption shall be affected by any
defect in or omission of such numbers. The Company promptly will notify the
Trustee of any change in the CUSIP numbers.
ARTICLE 3
COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal and Interest. The Company covenants and
agrees for the benefit of each particular Series of Securities that it will duly
and punctually pay or cause to be paid the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of the Securities
of such Series and this Indenture.
SECTION 3.02 Offices for Payment, Etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series: an
office or agency where the Securities may be presented for payment or
conversion; where the Securities may be presented for registration of transfer
and for exchange; and where notices and demands to or upon the Company in
respect of the Securities or of this Indenture may be served. The Company
14
will give to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. In case the Company shall fail to
so designate or maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office.
Unless otherwise specified pursuant to Section 2.03, the Trustee is hereby
appointed Paying Agent.
SECTION 3.03 Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any Series, it
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such Agent shall agree with the Trustee, subject to the provisions of
this Section 3.03:
(a) that it will hold all amounts received by it as such Paying
Agent for the payment of the principal of or interest on the Securities of
such Series in trust for the benefit of the Holders of the Securities of
such Series and, upon the occurrence of an Event of Default and upon the
written request of the Trustee, pay over all such amounts received by it
to the Trustee; and
(b) that it will give the Trustee notice of any failure by the
Company or by any other obligor on the Securities of such Series to make
any payment of the principal of or interest on the Securities of such
Series when the same shall be due and payable.
On or prior to each due date of the principal of or interest on the
Securities of such Series, the Company will deposit with the Paying Agent
sufficient funds to pay such principal or interest so becoming due and, unless
such Paying Agent is the Trustee, notify the Trustee of any failure to take such
action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, on or before each due date of the principal of or
interest on the Securities of such Series it will set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such Series
sufficient funds to pay such principal or interest so becoming due. The Company
will promptly notify the Trustee of any failure to take such action.
At any time, for the purpose of obtaining a satisfaction and discharge
with respect to one or more or all Series of Securities or for any other reason,
the Company may pay or cause to be paid to the Trustee all amounts held in trust
for any such Series by the Company or any Paying Agent, such amounts to be held
by the Trustee in trust pursuant to this Indenture.
The agreement to hold amounts in trust as provided in this Section 3.03 is
subject to the provisions of Sections 10.03 and 10.04.
SECTION 3.04 Officers' Certificate. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending
after the date hereof, a statement signed by a principal execute officer,
principal financial officer or principal accounting officer, which need not
constitute an Officers' Certificate, as to the Company's compliance with all
conditions and covenants under the Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
the Indenture).
15
SECTION 3.05 Calculation of Original Issue Discount. The Company shall
file with the Trustee, within 60 days after the end of each calendar year, a
written notice specifying the amount of original issue discount, if any,
including daily rates and accrual periods, accrued on each Series of Outstanding
Securities as of the end of such year.
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
SECTION 4.01 Company to Furnish Trustee Information as to Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee reasonably may require of the names
and addresses of the Holders of the Securities of each Series:
(a) semiannually, and not more than 15 days after each record date
for the payment of interest on such Securities, as of such record date;
and
(b) at such other times as the Trustee reasonably may request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished.
If the Trustee shall be the Security registrar for such Series, no such
list shall be required to be furnished to the Trustee.
SECTION 4.02. Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the Holders of each Series of Securities contained in the most recent list
furnished to it as provided in Section 4.01 or maintained by the Trustee
in its capacity as Security registrar for such Series. The Trustee may
destroy any list furnished to it as provided in Section 4.01 upon receipt
of a new list so furnished.
(b) In case three or more Holders of Securities of any Series
("APPLICANTS") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such
Series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such Series or with
Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application is accompanied by
a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee, within five Business Days after the
receipt of such application, at its election, either:
(i) shall afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of Section 4.02(a); or
(ii) shall inform such applicants as to the approximate number
of Holders of Securities of such Series or all Securities, as the
case may be, whose
16
names and addresses appear in the information preserved at the time
by the Trustee, in accordance with the provisions of Section
4.02(a), and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee, upon the written request of such
applicants, shall mail to each Securityholder of such Series or all
Securities, as the case may be, whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of Section 4.02(a), a copy of the form of proxy or other
communication that is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such Series or all Securities,
as the case may be, or could be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of such order
sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation
or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the
provisions of Section 4.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under such Section 4.02(b).
SECTION 4.02 Reports by the Company. The Company:
(a) will 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 from time to time
by rules and regulations may prescribe) that the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act, or if the Company is not required to file
information, documents or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and
17
reports that may be required pursuant to Section 13 of the Securities
Exchange Act or in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) will 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 provided for
in this Indenture as may be required from time to time by such rules and
regulations; and
(c) will transmit by mail to the Holders of Securities in the manner
and to the extent required by Section 6.06, 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
Sections 4.03(a) and (b) as may be required to be transmitted to such
Holders by rules and regulations prescribed from time to time by the
Commission.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "EVENT OF DEFAULT", with respect to Securities of any Series, means any
one of the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless it is either inapplicable to a
particular Series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or resolution of the Board of Directors establishing
such Series of Securities or in the form of Security for such Series:
(a) default in the payment of any installment of interest upon any
of the Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(b) default in the payment of all or any part of the principal of
any of the Securities of such Series as and when the same shall become due
and payable, either at maturity, upon any redemption, by declaration or
otherwise;
(c) default in the performance or breach of any covenant or warranty
contained in the Securities of such Series or in this Indenture (other
than a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section 5.01 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one or
more Series of Securities other than that Series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding
18
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;
(d) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
(1) adjudging the Company a bankrupt or insolvent, (2) approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable
federal or state law, (3) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or of any substantial part of its property or (4) ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days;
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or 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
(f) any other Event of Default provided with respect to Securities
of such Series in the supplemental indenture or resolution of the Board of
Directors establishing such Series.
If an Event of Default occurs and is continuing with respect to the
Securities of any Series, then and in each and every such case, unless the
principal of all Securities of such Series shall have already become due and
payable, either the Trustee for such Series or the Holders of not less than 25%
in aggregate principal amount at maturity of the Securities of such Series then
Outstanding, by notice in writing to the Company and to the Trustee if given by
such Holders, may declare the principal of all the Securities of such Series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. This provision, however, is
subject to the condition that if at any time after the principal of the
Securities of such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the amounts due shall have been
obtained or entered as hereinafter provided, the Company shall have paid or
deposited with the Trustee sufficient funds to pay all matured installments of
interest, if any, upon all the Securities of such Series and the principal of
the Securities of such Series that shall have become due other than by such
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, upon overdue installments
of interest, at the rate borne by the Securities of such
19
Series to the date of such payment or deposit) and all other defaults under this
Indenture, other than the nonpayment of the principal of Securities of such
Series that shall have become due by such acceleration, shall have been
remedied, then and in every such case the Holders of a majority in aggregate
principal amount at maturity of the Securities of such Series then Outstanding,
by written notice to the Company and to the Trustee for the Securities of such
Series, may waive all defaults and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
SECTION 5.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. If the Company shall fail to pay any installment of interest on any of the
Securities of any Series when such interest shall have become due and payable,
and such default shall have continued for a period of 30 days or shall fail to
pay the principal of any of the Securities of any Series when the same shall
have become due and payable, whether upon maturity of the Securities of such
Series or upon any redemption or by declaration or otherwise, then upon demand
of the Trustee for the Securities of such Series, the Company will pay to the
Trustee for the Securities of such Series for the benefit of the Holders of the
Securities of such Series the whole amount that then shall have become due and
payable on all Securities of such Series for principal of or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest specified in the Securities of such Series) and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to and expenses incurred by the Trustee and each
predecessor Trustee and their respective agents, attorneys and counsel.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the Securities
of such Series are overdue.
If the Company shall fail to pay such amounts upon such demand, the
Trustee for the Securities of such Series, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the amounts so due and
unpaid. In any such case, the Trustee may prosecute any such action or
proceedings to judgment or final decree and may enforce any such judgment or
final decree against the Company or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Company or
other obligor upon such Securities, wherever situated, the amounts adjudged or
decreed to be payable.
If (i) there shall be pending proceedings relative to the Company or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, (ii) a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor or (iii)
any other comparable judicial proceedings relative to the Company or other
obligor under the Securities of any Series, or to the creditors or property of
the Company or such other obligor, shall be pending, and irrespective of whether
the principal of any Securities shall then be due and payable or whether the
Trustee shall have made any demand pursuant to the provisions of this
20
Section 5.02, the Trustee shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of
any Series and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to, and expenses incurred by, the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel) and of the Securityholders allowed in any judicial
proceedings relative to the Company or other obligor upon all Securities
of any Series, or to the creditors or property of the Company or such
other obligor; and
(b) to collect and receive any funds or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make
payments to the Trustee for the Securities of such Series, and, in the
event that such Trustee shall consent to the making of payments directly
to the Securityholders, to pay to such Trustee such amounts as shall be
sufficient to cover reasonable compensation to and expenses incurred by
such Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel and all other amounts due to such Trustee or any
predecessor Trustee pursuant to Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture or under
any of the Securities may be enforced by the Trustee for the Securities of such
Series without the possession of any of the Securities of such Series or the
production thereof at any trial or other proceedings relative thereto. Any such
action or proceedings instituted by the Trustee shall be brought in its own name
as trustee of an express trust. Any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee for the Securities of such
Series, the Trustee shall be held to represent all the Holders of the Securities
in respect of which such action was taken, and it shall not be necessary to make
any Holders of such Securities parties to any such proceedings.
SECTION 5.03 Application of Proceeds. Any amounts collected by the Trustee
for the Securities of such Series pursuant to this Article 5 in respect of the
Securities of any Series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the distribution of such amounts on
account of principal or interest, upon presentation of the several
21
Securities in respect of which amounts have been collected and stamping or
otherwise noting thereon the payment, or issuing Securities of such Series in
reduced principal amounts in exchange for the presented Securities of like
Series if only partially paid, or upon surrender thereof if fully paid:
FIRST: to the payment of costs and expenses applicable to such
Series in respect of which amounts have been collected, including
reasonable compensation to and expenses incurred by the Trustee and each
predecessor Trustee and their respective agents and attorneys and all
other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 6.07;
SECOND: to the payment of the amounts then due and unpaid for
principal of and interest on the Securities of such Series in respect of
which amounts have been collected, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference, according
to the amounts then due and payable on such Securities for principal and
interest; and
THIRD: to the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
SECTION 5.04 Restoration of Rights on Abandonment of Proceedings. If the
Trustee for the Securities of any Series shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, the Company and the Trustee, subject to the determination in any such
proceeding, shall be restored to their former positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.05 Limitations on Suits by Securityholders. No Holder of any
Security of any Series shall have any right, by virtue or by availing of any
provision of this Indenture, to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof and the Holders of not less than 25% in aggregate principal
amount of the Securities of such Series then Outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee indemnity reasonable
to it as it may require, against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee during such 60-day period by
Holders of a majority in principal amount of the Securities of such Series then
Outstanding; it being understood and intended, and being expressly covenanted by
the Holder of every Security with every other Holder of a Security and the
Trustee, that no one or more Holders of Securities of any Series shall have any
right in any manner whatever, by virtue or by availing of any provision of this
Indenture, to affect, disturb or prejudice the rights of any other such Holder
of Securities, or to obtain or seek to obtain priority over or preference to any
other
22
such Holder or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable Series.
SECTION 5.06 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and (subject to Section 2.07) interest on such Security at the
respective rates, in the respective amount on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.07 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Sections 2.09 and 5.05, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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 shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein. Subject to
Section 5.05, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or the Securityholders.
SECTION 5.08 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred by this Indenture on the Trustee with respect to
the Securities of such Series; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture. The
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all Series so affected not joining in the giving of said
direction, it being understood that the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
SECTION 5.09 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of such Series at the time
Outstanding, on behalf of the Holders of all the Securities of such Series, may
waive any past default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of such Series.
23
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs.
Any court in its discretion may require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit. Any such
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant. The provisions of this Section 5.10 shall not apply, however, to
any suit instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders of any Series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such Series or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
SECTION 5.11 Suits for Enforcement. If an Event of Default has occurred,
has not been waived and is continuing, the Trustee in its discretion may proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01 Duties of Trustee.
(a) If an 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.
(b) Except during the continuance of an Event of Default with
respect to the Securities of any Series:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and the Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
24
(ii) 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 any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 6.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.08.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
6.01.
(e) No provision of this Indenture shall require the Trustee to
extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Amounts 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 amounts received
by it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.02 Rights of Trustee.
(a) The Trustee may rely on, and shall be protected in relying upon,
any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
25
(c) Subject to the provisions of Section 6.01(c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which
it believes to be authorized or within its rights or powers.
(d) Before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the 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 in accordance with such
advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee indemnity reasonable to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(g) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, Officers' Certificate or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or
document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Outstanding
Securities of each affected Series; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation, in the
opinion of the Trustee, is not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on
the part of the Company, except as otherwise set forth herein, but the
Trustee may require of the Company full information and advice as to the
performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books, records
and premises of the Company.
(j) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its negligence or willful default.
26
(k) Except for (i) a default under Section 5.01(a) or (b) or (ii)
any other event of which the Trustee has actual knowledge and which event,
with the giving of notice or the passage of time or both, would constitute
an Event of Default under this Indenture, the Trustee shall not be deemed
to have notice of any default or event unless specifically notified in
writing of such event by the Company or the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities of each
affected Series.
SECTION 6.03 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, registrar or co-registrar may do
the same with like rights. However, the Trustee must comply with Sections 6.10
and 6.11.
SECTION 6.04 Trustee's Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities. The Trustee
shall not be accountable for the Company's use of the proceeds from the
Securities and shall not be responsible for any statement in any registration
statement for the Securities filed with the Commission under the Securities Act
(other than its Statement of Eligibility on Form T-1) or in the Indenture (other
than its eligibility under Section 6.10) or the Securities (other than its
certificate of authentication).
SECTION 6.05 Notice of Defaults. If a default occurs and is continuing
with respect to any Securities of any Series and if the Trustee has actual
knowledge of such default, the Trustee shall give to each Securityholder of such
Series notice of the default within 90 days after such default occurs. Except in
the case of a default described in Section 5.01(a) or (b), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of such Series.
SECTION 6.06 Reports by Trustee to Holders. Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder of any Series and each other Person specified
in Section 313(c) of the Trust Indenture Act a brief report dated as of such May
15 that complies with Section 313(a) of the Trust Indenture Act to the extent
required thereby. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act.
The Trustee will file a copy of each report, at the time of its mailing to
Securityholders of any Series, with the Commission and each securities exchange
on which the Securities of any Series are listed. The Company promptly will
notify the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.07 Compensation and Indemnity. The Company:
(a) will pay to the Trustee from time to time, and the Trustee shall
be entitled to, such compensation as shall be agreed to in writing between
the Company and the Trustee 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;
27
(b) will 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 expenses of its agents and counsel, except to the extent
any such compensation or expense may be attributable to its negligence or
willful misconduct; and
(c) will indemnify the Trustee for, and hold it harmless against,
any loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the reasonable costs and expenses of defending
itself against or investigating any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder,
except to the extent that any such loss, liability or expense may be
attributable to its negligence or willful misconduct.
As security for the performance of the Company's obligations under this
Section 6.07, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except for those funds that are
held in trust to pay the principal of or interest, if any, on particular
Securities.
"Trustee" for purpose of this Section 6.07 includes any predecessor
trustee; provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.07 shall
constitute additional indebtedness hereunder and shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
default specified in Sections 5.01(d) and (e), such expenses, including
reasonable fees and expenses of counsel, are intended to constitute expenses of
administration under bankruptcy law.
SECTION 6.08 Replacement of Trustee. The Trustee may resign at any time
with respect to Securities of one or more Series by so notifying the Company. No
such resignation, however, shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 6.08. The Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
Series may remove the Trustee with respect to such Series by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more Series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of such Series.
28
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture with
respect to the Securities of such Series. The successor Trustee shall mail a
notice of its succession to Securityholders so affected. The retiring Trustee
shall promptly transfer all funds and property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 6.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of each affected Series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
SECTION 6.09 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into or transfers all or substantially all its
corporate trust business or assets to another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of Section 310(a)(1) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. Neither the
Company nor any person directly or indirectly controlling, controlled by or
under common control with the Company shall serve as Trustee hereunder. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 6.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
a specified percentage in principal amount of the Securityholders of any
or all Series may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of
29
this Indenture and, subject to Sections 6.01 and 6.02, conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Article 7.
(b) The ownership of Securities shall be proved by the Security
register.
SECTION 7.02 Proof of Execution of Instruments. Subject to Sections 6.01
and 6.02, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.03 Holders to Be Treated as Owners. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security register for such Series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and
interest on such Security and for all other purposes. Neither the Company nor
the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All payments made to any such person, or upon his order,
shall be valid and, to the extent of the amounts so paid, effectual to satisfy
and discharge the liability for amounts payable upon any such Security.
SECTION 7.04 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture, Securities that are owned by the Company
or any other obligor on the Securities with respect to which such determination
is being made, or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Securities with respect to which such determination is being
made, shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination. For the purpose of determining whether the Trustee shall
be protected in relying on any such direction, consent or waiver, only
Securities that the Trustee knows are so owned shall be so disregarded.
Securities so owned that 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 person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Securities.
SECTION 7.05 Right of Revocation of Action Taken. At any time prior to the
evidencing to the Trustee, as provided in Section 7.01, of the taking of any
action by the Holders of the percentage in aggregate principal amount of the
Securities of any Series specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article 7,
may revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Securities issued in exchange or substitution therefor, irrespective of
whether
30
or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any Series specified in this Indenture in connection with
such action shall be binding upon the Company, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01 Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by a resolution of its Board of Directors, and the
Trustee for the Securities of any Series from time to time and at any time may
enter into an indenture or indentures supplemental hereto, which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof, in form satisfactory to such Trustee, for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Trustee as security for the Securities of one or more Series
or to provide that any of the Company's obligations under any Series of
the Securities or this Indenture shall be guaranteed and the terms and
conditions for the release or substitution of such security or guarantee;
(b) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article
9;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders
of Securities of any Series and, if such additional covenants are to be
for the benefit of less than all the Series of Securities, stating that
such covenants are being added solely for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture or under any
supplemental indenture as the Board of Directors may deem necessary or
desirable and that shall not materially and adversely affect the interests
of the Holders of the Securities;
(e) to establish the form or terms of Securities of any Series as
permitted by Sections 2.01 and 2.03; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than the one Trustee,
pursuant to the requirements of Section 6.08.
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The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
8.01 may be executed without the consent of the Holders of any of the Securities
at the time Outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02 Supplemental Indentures with Consent of Securityholders. With
the consent (evidenced as provided in Article 7) of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
Series affected by such supplemental indenture, the Company, when authorized by
a resolution of its Board of Directors, and the Trustee for such Series of
Securities, from time to time and at any time, may enter into an indenture or
indentures supplemental hereto, which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
Series. No such supplemental indenture, however, shall:
(a) extend the final maturity date of any Security, reduce the
principal amount thereof, reduce the rate or extend the time of payment of
interest thereon, reduce any amount payable on redemption thereof, impair
or affect the right of any Securityholder to institute suit for payment
thereof or, if the Securities provide therefor, affect any right of
repayment at the option of the Securityholder without the consent of the
Holder of each Security so affected;
(b) reduce the aforesaid percentage of Securities of any Series, the
consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so
affected; or
(c) reduce the amount of principal payable upon acceleration of the
maturity date of any Original Issue Discount Security.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors certified by the secretary or an assistant secretary of
the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of the Securityholders as aforesaid and other documents, if any,
required by Section 7.01, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture. If such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, such Trustee in its discretion may, but shall
not be obligated to, enter into such supplemental indenture.
32
It shall not be necessary for the consent of the Securityholders under
this Section 8.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.02, the
Company shall give notice in the manner and to the extent provided in Section
11.04 to the Holders of Securities of each Series affected thereby at their
addresses as they shall appear on the Security register, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not in any way impair
or affect the validity of any such supplemental indenture.
SECTION 8.03 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each Series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.04 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.01 and 6.02, shall receive an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
SECTION 8.05 Notation on Securities in Respect of Supplemental Indentures.
Securities of any Series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 8 may bear,
upon the direction of the Company, a notation in form satisfactory to the
Trustee for the Securities of such Series as to any matter provided for by such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities of any Series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Outstanding
Securities of such Series.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01 Company May Consolidate, Etc. on Certain Terms. The Company
may consolidate with or merge with or into, or sell, convey or lease all or
substantially all of its assets to, any other corporation; provided that in any
such case:
(a) either the Company shall be the continuing Person, or the
successor Person shall be organized and validly existing under the laws of
the United States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities according
33
to their tenor, and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed or
observed by the Company by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such Person, and
(b) the Company or such successor Person, as the case may be, shall
not be in material default immediately after such consolidation, merger,
sale, conveyance or lease in the performance or observance of any such
covenant or condition of this Indenture.
SECTION 9.02 Successor Person Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor Person, such successor Person shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession any or all
of the Securities issuable hereunder that shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture, the Trustee shall authenticate and shall make
available for delivery any Securities that shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any
Securities which such successor Person thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance, the Company (or any successor
Person which shall theretofore have become such in the manner described in this
Article 9) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.03 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.01 and 6.02, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.05, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 10.01 Satisfaction and Discharge of Indenture.
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(a) If at any time:
(i) the Company shall have paid or caused to be paid the
principal of and interest on all the Outstanding Securities of any
Series as and when the same shall have become due and payable,
(ii) the Company shall have delivered to the Trustee for
cancellation all Securities of any Series theretofore authenticated
(other than any Securities of such Series which have been destroyed,
lost or stolen and which shall have been replaced or paid as
provided in Section 2.09) or
(iii) (A) all the Securities of such Series not theretofore
delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one
year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (B) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee as trust funds the entire
amount or Government Obligations maturing as to principal and
interest in such amounts and at such times as will ensure the
availability of funds sufficient to pay at maturity or upon
redemption all Securities of such Series (other than any Securities
of such Series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.09)
not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity
as the case may be, and if, in any such case, the Company shall also
pay or cause to be paid all other amounts payable hereunder by the
Company with respect to Securities of such Series,
then this Indenture shall cease to be of further effect with respect to
Securities of such Series (except as to (1) rights of registration of
transfer and exchange, (2) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (3) rights of Holders to receive payments of
principal thereof and interest thereon upon the original stated due dates
therefor and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (4) the rights, obligations and immunities of the
Trustee hereunder and (5) the rights of the Securityholders of such Series
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them). Subject to Section 10.05, the
Trustee, on demand of the Company accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company,
shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such Series. The Company will
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and will compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection
with this Indenture and the Securities of such Series.
(b) In addition to its rights to discharge this Indenture pursuant
to Section 10.01(a), the Company may defease the covenants applicable to
any Series of
35
Securities, as provided in this Section 10.01(b), by complying with the
provisions of this Section 10.01(b):
(i) The Company, at its option at any time, may exercise its
right to elect to have defeasance under Section 10.01(b)(ii) be
applied to the Outstanding Securities of any Series; provided that
provision is made for such right pursuant to Section 2.03 and the
applicable conditions thereto as set forth in this Section 10.01(b)
have been satisfied.
(ii) Upon the Company's exercise of the right referenced in
Section 10.01(b)(i) applicable to this Section 10.01(b)(ii), the
Company may terminate its obligations under the Outstanding
Securities of any Series and this Indenture with respect to such
Series on the date the conditions set forth in Section 10.01(b)(iii)
are satisfied ("DEFEASANCE"). For this purpose, defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of
such Series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are
concerned, except for the following: (A) the rights of Holders of
Outstanding Securities of such Series to receive payments in respect
of the principal of and interest on such Securities when such
payments are due; (B) the Company's obligations with respect to such
Securities under Sections 2.08, 2.09, 3.02, 6.07, 10.04 and 10.05;
(C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder; and (D) this Section 10.01(b).
(iii) The following shall be the conditions to the application
of Section 10.01(b)(ii) to the Outstanding Securities of such
Series:
(A) The Company shall have irrevocably deposited or
caused to be deposited with the Trustee under the terms of an
irrevocable trust agreement, as trust funds in trust solely
for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of Securities of such Series, (I) cash in the
currency or currency unit required, (II) Government
Obligations maturing as to principal and interest in such
amounts (payable in the currency in which the Securities of
such Series are payable) and at such times as are sufficient
to pay the principal of and interest on the Outstanding
Securities of such Series to maturity or redemption, as the
case may be, or (III) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay
and discharge, (x) the principal of and each installment of
interest, if any, on the Outstanding Securities of such Series
on the stated maturity of such principal or installment of
interest, if any, and (y) any mandatory sinking fund payments
or analogous payments applicable to the Outstanding Securities
of such Series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of
such
36
Securities. Such irrevocable trust agreement shall include,
among other things, (a) provision for the payments referenced
in clauses (x) and (y) of the immediately preceding sentence,
(b) the payment of the reasonable expenses of the Trustee
incurred or to be incurred in connection with carrying out
such trust provisions, (c) rights of registration of transfer,
substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and (d)
continuation of the rights and obligations and immunities of
the Trustee as against the Holders of Securities of such
Series as stated in this Indenture.
(B) No Event of Default or event which with notice or
lapse of time or both would constitute an Event of Default
with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or,
insofar as Sections 5.01(d) and 5.01(e) are concerned, at any
time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(C) Such defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture
with respect to the Securities of such Series.
(D) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Securityholders of such
Series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and discharge
and will be subject to federal income tax on the same amounts
and in the same manner and at the same time as would have been
the case if such deposit and defeasance had not occurred, and
which Opinion of Counsel must be based upon (x) a ruling of
the U.S. Internal Revenue Service to the same effect or (y) a
change in applicable U.S. federal income tax law after the
date of the Indenture such that a ruling is no longer
required.
(E) The Company shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating
that all conditions precedent provided for herein relating to
the deposit and defeasance contemplated by this Section
10.01(b) have been complied with.
SECTION 10.02 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all funds deposited with the Trustee
pursuant to Section 10.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent, to the Holders of the
particular Securities of such Series for the payment or redemption of which such
funds have been deposited with the Trustee, of all amounts due and to become due
thereon for principal and interest; but such funds need not be segregated from
other funds except to the extent required by law.
37
SECTION 10.03 Repayment of Amounts Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series, all amounts then held by any Paying Agent (other than the
Company) under the provisions of this Indenture with respect to such Series of
Securities, upon written demand of the Company, shall be paid to the Trustee and
thereupon such Paying Agent shall be released from all further liability with
respect to such amounts.
SECTION 10.04 Return of Unclaimed Amounts Held by Trustee and Paying
Agent. Any amounts deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, upon the written request of the
Company, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, promptly shall be repaid to the Company
by the Trustee for such Series or such Paying Agent (except that with respect to
any amounts then held by the Company in trust as its own Paying Agent no such
request need be given and at such time the Company shall be discharged from its
duty to hold such amounts in trust as Paying Agent). The Holder of the Security
of such Series, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter shall look only to
the Company for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any Paying Agent with respect to such amounts
thereupon shall cease. Anything in this Article 10 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the written request of the Company any funds or Government Obligations
held by it as provided in Section 10.01(b)(iii) 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 such
defeasance in accordance with the provisions of this Indenture.
SECTION 10.05 Reinstatement of Company's Obligations. If the Trustee is
unable to apply any funds or Government Obligations in accordance with Section
10.01 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities of any Series for which such application is prohibited shall be
revived and reinstated as if no deposit had occurred pursuant to Section 10.01
until such time as the Trustee is permitted to apply all such funds or
Government Obligations in accordance with Section 10.01. If the Company has made
any payment of interest on or principal of any of such Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Securityholders of such Securities to receive such payment from the funds
or Government Obligations held by the Trustee.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01 Incorporators, Shareholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any Security
shall be had against any incorporator as such or against any past, present or
future shareholder, officer or director of the Company or of
38
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.02 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, firm or corporation,
other than the parties hereto, any Paying Agent and their successors hereunder
and the Holders of the Securities any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 11.03 Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not. SECTION 11.04 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand that by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Company is filed by the Company
with the Trustee) to Fluor Corporation, One Enterprise Drive, Aliso Viejo,
California 92656, Attention: Chief Financial Officer. Any notice, direction,
request or demand by the Company or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Holders as
their names and addresses appear in the Security register within the time
prescribed. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
39
SECTION 11.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the 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 that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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SECTION 11.06 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, payment of interest
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.07 Conflict of Any Provision of Indenture with Trust Indenture
Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture which is required
by the Trust Indenture Act, such required provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 11.08 New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the internal laws of the State of New
York (other than principles of law that would apply the law of another
jurisdiction), and for all purposes shall be construed and enforced in
accordance with and governed by the laws of said State. SECTION 11.09
Counterparts. This Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof. The use of the masculine, feminine or neuter gender
herein shall not limit in any way the applicability of any term or provision
hereof.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01 Applicability of Article. The provisions of this Article 12
shall be applicable to the Securities of any Series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
Series, except as otherwise specified as contemplated by Section 2.03 for
Securities of such Series.
SECTION 12.02 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series required to be redeemed or
to be redeemed as a whole or in part at the option of the Company shall be given
by giving notice of such redemption as provided in Section 11.04, at least 30
days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such Series. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a Series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such Series.
The notice of redemption to each such Holder shall specify the date fixed
for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of
41
Payment, that payment will be made upon presentation and surrender of such
Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice, that on and after
said date interest thereon or on the portions thereof to be redeemed will cease
to accrue and, if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion contained
in such Securities, the then existing conversion price or rate and the date and
time when the option to convert shall expire. If less than all of the Securities
of any Series are to be redeemed, the notice of redemption shall specify the
numbers of the Securities of such Series to be redeemed. In case any Security of
a Series is to be redeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such Series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at the
option of the 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. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least 60 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least three
Business Days prior to the date such notice is given to such Holders, but in any
event at least 30 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.03, not later than the
redemption date specified in the notice of redemption given as provided in this
Section 12.02, the Company will have on deposit with the Trustee or with one or
more Paying Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.03) funds available
on such date (or other forms of property, if permitted by the terms of the
Securities of such Series) sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed, the Company
will deliver to the Trustee at least 60 days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed (unless a shorter notice shall be satisfactory to the
Trustee).
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
However, if less than all the Securities of any Series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular securities to be redeemed and
shall notify the Trustee in writing thereof at least 60 days prior to the
relevant redemption date (unless a shorter notice shall be satisfactory to the
Trustee). Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such Series or any multiple thereof.
For all purposes of this Indenture, unless the context otherwise requires, all
42
provisions relating to the redemption of Securities of any Series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 12.03 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue. Except as provided in Sections 6.01 and 10.04, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption. If for any Securities the date fixed
for redemption is a regular interest payment date, payment of interest becoming
due on such date shall be payable to the Holders of such Securities registered
as such on the relevant record date subject to the terms and provisions of
Section 2.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest borne
by the Security.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 12.05 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any Series
is 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
referred to as an "OPTIONAL SINKING FUND PAYMENT". The date on which a sinking
fund payment is to be made is referred to as the "SINKING FUND PAYMENT DATE".
43
In lieu of providing funds for all or any part of any mandatory sinking
fund payment with respect to any Series of Securities, the Company at its
option:
(a) may deliver to the Trustee securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of
such Series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Company and delivered to
the Trustee for cancellation pursuant to Section 2.10;
(b) may receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.05; or
(c) may receive credit for Securities of such Series (not previously
so credited) redeemed by the Company through any optional redemption
provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund payment
date for any Series of Securities, the Company will deliver to the Trustee a
written statement (which need not contain the statements required by Section
11.05) signed by an authorized officer of the Company which will:
(a) specify the portion of the mandatory sinking fund payment to be
satisfied by delivery of funds, except as otherwise specified pursuant to
Section 2.03 for the Securities of such Series, and the portion to be
satisfied by delivery or credit of Securities of such Series;
(b) state that none of the Securities of such Series for which
credit is sought has theretofore been so credited;
(c) state that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not been
waived or cured) and are continuing;
(d) state whether or not the Company intends to exercise its right
to make an optional sinking fund payment with respect to such Series and,
if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund
payment date; and
(e) specify such sinking fund payment date.
Any Securities of such Series to be credited and required to be delivered
on the Trustee in order for the Company to be entitled to credit therefor that
have not previously been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such written
statement. Such written statement shall be irrevocable. Upon its receipt by the
Trustee the Company shall become unconditionally obligated to make all the
payments, if any, therein
44
referred to on or before the next succeeding sinking fund payment date. Failure
of the Company, on or before any such forty-fifth day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such Series due on the next succeeding sinking fund payment date shall be
paid entirely in funds without the option to deliver or credit Securities of
such Series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such Series as provided in this Section
12.05.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in funds on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in funds shall exceed
$100,000 (or a lesser amount if the Company shall so request) with respect to
the Securities of any particular Series, such funds shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
Series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $100,000 or less and the
Company makes no such request then it shall be carried over until an amount in
excess of $100,000 is available. The Trustee shall select, in the manner
provided in Section 12.02 and giving effect to any exclusions required pursuant
to Section 12.04, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb, as nearly as may be
possible, such funds and shall inform the Company of the serial numbers of the
Securities of such Series (or portions thereof) so selected. The Trustee, in the
name and at the expense of the Company, shall cause notice of redemption of the
Securities of such Series to be given in substantially the manner provided in
Section 12.02 for the redemption of Securities of such Series. The amount of any
sinking fund payments not so applied or allocated to the redemption of
Securities of such Series shall be added to the next sinking fund payment for
such Series and, together with such payment, shall be applied in accordance with
the provisions of this Section 12.05. Any and all sinking fund amounts held on
the stated maturity date of the Securities of any particular Series (or earlier,
if such maturity is accelerated) that are not held for the payment or redemption
of particular Securities of such Series shall be applied, together with other
amounts, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such Series at maturity.
Unless otherwise specified pursuant to Section 2.03, not later than the
sinking fund payment date, the Company shall have paid to the Trustee or shall
otherwise provide funds available on such date for the payment of all principal
and interest accrued to the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund amounts or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of Securities of any Series previously shall have been made, the
Trustee shall redeem or cause to be redeemed such Securities; provided that it
shall have received from the Company amounts sufficient for such redemption.
Except as aforesaid, any amounts in the sinking fund for Securities of such
Series at the time when any such default or Event of Default shall occur, and
any amounts thereafter paid into the sinking fund, during the continuance of
45
such default or Event of Default, shall be deemed to have been collected under
Article 5 and held for the payment of all Securities of such Series. In case
such Event of Default shall have been waived as provided in Section 5.09 or the
default cured on or before the sixtieth day preceding the sinking fund payment
date in any year, such amounts thereafter shall be applied on the next
succeeding sinking fund payment date in accordance with this Section 12.05 to
the redemption of such Securities.
SECTION 12.06 Repayment at the Option of the Holders. Securities of any
Series that are repayable at the option of the Holders before their stated
maturity shall be repaid in accordance with the terms of the Securities of such
Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their stated
maturity, for purposes of Section 10.01, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same
to the Trustee with a directive that such Securities be cancelled.
SECTION 12.07 Conversion Arrangement on Call for Redemption. In connection
with any redemption of Securities of any Series, the Company may arrange for the
purchase and conversion of any Securities of any Series called for redemption by
an agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Trustee or the Paying Agent in trust for the
Holders of such Securities, on or before 10:00 a.m. New York time on the
redemption date, an amount not less than the redemption price, together with
interest, if any, accrued to the redemption date of such Securities, in
immediately available funds. Notwithstanding anything to the contrary contained
in this Article 12, the obligation of the Company to pay the redemption price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof, at the option of the Company,
may be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
such Securities called for redemption may be converted in accordance with this
Indenture and the terms of such Securities, subject to payment to the Trustee or
Paying Agent of the above-described amount. The Trustee or the Paying Agent
shall hold and pay to the Holders whose Securities are selected for redemption
any such amount paid to it in the same manner as it would pay funds deposited
with it by the Company for the redemption of Securities of such Series. Without
the Trustee's and the Paying Agent's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee and the Paying Agent as set forth
in this Indenture. The Company agrees to indemnify the Trustee and the Paying
Agent from, and hold them harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of Securities of any Series between the Company and such purchasers,
including the reasonable costs and expenses incurred by the Trustee and the
Paying Agent in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of their powers, duties,
responsibilities or obligations under this Indenture.
46
ARTICLE 13
CONVERSION OF SECURITIES
SECTION 13.01 Applicability of Article. Securities of any Series that are
convertible into Common Shares at the option of the Holder of such Securities
shall be convertible in accordance with their terms and, unless otherwise
specified as contemplated by Section 2.03 for the Securities of any Series, in
accordance with this Article 13. Each reference in this Article 13 to "a
Security" or "the Securities" refers to the Securities of the particular Series
that is convertible into Common Shares. If more than one Series of Securities
with conversion privileges are Outstanding at any time, the provisions of this
Article 13 shall be applied separately to each such Series.
SECTION 13.02 Right of Holders to Convert Securities into Common Shares.
Subject to the provisions of Section 12.07 and this Article 13, at the option of
the Holder thereof, any Security of any Series that is convertible into Common
Shares, or any portion of the principal amount thereof which is $1,000 or any
integral multiple of $1,000, may be converted into duly authorized, validly
issued, fully paid and nonassessable Common Shares at any time during the period
specified in the Securities of such Series, or in case such Security or portion
thereof shall have been called for redemption, then in respect of such Security
or portion thereof until (unless the Company shall default in payment due upon
the redemption thereof) the close of business on the redemption date (except
that in the case of repayment at the option of the Holder, if specified in the
terms of the relevant Security, such right shall terminate upon the Company's
receipt of written notice of the exercise of such option), as specified in such
Security, at the conversion price or conversion rate for each $1,000 principal
amount of Securities (such initial conversion rate reflecting an initial
conversion price specified in such Security) in effect on the conversion date,
or, in case an adjustment in the conversion price has taken place pursuant to
the provisions of this Article 13, then at the applicable conversion price as so
adjusted, upon surrender of the Security or Securities, the principal amount of
which is so to be converted, to the Company at any time during usual business
hours at the office or agency to be maintained by it in accordance with the
provisions of Section 3.02, accompanied by a written notice of election to
convert as provided in Section 13.03. If the Holder requests that the Common
Shares be registered in a name other than that of the Holder, such notice also
shall be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee, duly executed by the Holder thereof
or his attorney duly authorized in writing. All Securities surrendered for
conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and cancelled by it, or shall, if
surrendered to the Trustee, be cancelled by it, as provided in Section 2.10.
The initial conversion price or conversion rate in respect of a Series of
Securities shall be as specified in the Securities of such Series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.05 or such other or different terms, if any, as may be
specified by Section 2.03 for Securities of such Series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of such Security.
SECTION 13.03 Issuance of Common Shares on Conversions. As promptly as
practicable after the surrender, as herein provided, of any Security or
Securities for conversion
47
into Common Shares, the Company shall deliver or cause to be delivered at the
office or agency to be maintained by it in accordance with the provisions of
Section 3.02 to or upon the written order of the Holder of the Security or
Securities so surrendered a certificate or certificates representing the number
of duly authorized, validly issued, fully paid and nonassessable Common Shares
into which such Security or Securities may be converted in accordance with the
terms thereof and the provisions of this Article 13. Prior to delivery of such
certificate or certificates, the Company shall require written notice at its
said office or agency from the Holder of the Security or Securities so
surrendered stating that the Holder irrevocably elects to convert such Security
or Securities, or, if less than the entire principal amount thereof is to be
converted, stating the portion thereof to be converted. Such notice shall also
state the name or names (with address and social security or other taxpayer
identification number) in which said certificate or certificates are to be
issued. Such conversion shall be deemed to have been made at the time that such
Security or Securities shall have been surrendered for conversion and such
notice shall have been received by the Company or the Trustee and such
conversion shall be at the conversion price in effect at such time. The rights
of the Holder of such Security or Securities as a Holder shall cease at such
time, and the Person or Persons entitled to receive the Common Shares upon
conversion of such Security or Securities shall be treated for all purposes as
having become either record holder or holders of such Common Shares at such
time. In the case of any Security of any Series that is converted in part only,
upon such conversion the Company shall execute and, upon the Company's request
and at the Company's expense, the Trustee or an authenticating agent shall
authenticate and deliver to the Holder thereof, as requested by such Holder, a
new Security or Securities of such Series of authorized denominations in
aggregate principal amount equal to the unconverted portion of such Security.
If the last day on which such Security may be converted is not a Business
Day in a place where the conversion agent for that Security is located, such
Security may be surrendered to that conversion agent on the next succeeding day
that is a Business Day.
The Company shall not be required to deliver certificates for Common
Shares upon conversion while its stock transfer books are closed for a meeting
of shareholders or for the payment of dividends or for any other purpose, but
certificates for Common Shares shall be delivered as soon as the stock transfer
books shall again be opened.
SECTION 13.04 No Payment or Adjustment for Interest or Dividends. Unless
otherwise specified as contemplated by Section 2.03 for Securities of such
Series, Securities surrendered for conversion into Common Shares during the
period from the close of business on any regular record date or special record
date next preceding any interest payment date to the opening of business on such
interest payment date (except Securities called for redemption on a redemption
date within such period) when surrendered for conversion must be accompanied by
payment, by certified or official bank check to the order of the Company payable
in clearing house funds at the location where the Securities are surrendered, of
an amount equal to the interest thereon which the Holder is entitled to receive
on such interest payment date. Payment of interest shall be made, on such
interest payment date or such other payment date (as set forth in Section 2.07),
as the case may be, to the Holder of the Securities as of such regular record
date or special record date, as applicable. Except where Securities surrendered
for conversion must be accompanied by payment as described above, no interest on
converted Securities will be payable by the Company on any interest payment date
subsequent to the date of conversion. No other payment or
48
adjustment for interest or dividends is to be made upon conversion.
Notwithstanding the foregoing, upon conversion of any Original Issue Discount
Security, the fixed number of Common Shares into which such Security is
convertible delivered by the Company to the Holder thereof shall be applied,
first, to the portion attributable to the accrued original issue discount
relating to the period from the date of issuance to the date of conversion of
such Security, and, second, to the portion attributable to the balance of the
principal amount of such Security.
SECTION 13.05 Adjustment of Conversion Price. Unless otherwise specified
as contemplated by Section 2.03 for Securities of such Series, the conversion
price for Securities convertible into Common Shares shall be adjusted from time
to time as follows:
(a) If the Company shall (x) pay a dividend or make a distribution
on Common Shares in Common Shares, (y) subdivide the outstanding Common
Shares into a greater number of shares or (z) combine the outstanding
Common Shares into a smaller number of shares, the conversion price for
the Securities of such Series shall be adjusted so that the Holder of any
such Security thereafter surrendered for conversion shall be entitled to
receive the number of Common Shares that such Holder would have owned or
have been entitled to receive after the happening of any of the events
described above had such Security been converted immediately prior to the
record date in the case of a dividend or the effective date in the case of
subdivision or combination. An adjustment made pursuant to this Section
13.05(a) shall become effective immediately after the record date in the
case of a dividend, except as provided in Section 13.05(h), and shall
become effective immediately after the effective date in the case of a
subdivision or combination.
(b) If the Company shall issue rights or warrants to all holders of
Common Shares entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or purchase Common
Shares at a price per share less than the current market price per share
of Common Shares (as defined for purposes of this Section 13.05(b) in
Section 13.05(e)), at the record date for the determination of
shareholders entitled to receive such rights or warrants, the conversion
price in effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price
in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Common Shares outstanding on
such record date plus the number of Common Shares which the aggregate
offering price of the total number of Common Shares so offered would
purchase at such current market price, and the denominator of which shall
be the number of Common Shares outstanding on such record date plus the
number of additional Common Shares receivable upon exercise of such rights
or warrants. Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately,
except as provided in Section 13.05(h), after such record date. In
determining whether any rights or warrants entitle the Holders of the
Securities of such Series to subscribe for or purchase Common Shares at
less than such current market price, and in determining the aggregate
offering price of such Common Shares, there shall be taken into account
any consideration received by the Company for such rights or warrants plus
the exercise price thereof, the value of such consideration or exercise
price, as the case may be, if other than cash, to be determined by the
Board of Directors.
49
(c) If the Company shall distribute to all holders of Common Shares
any shares of capital stock of the Company (other than Common Shares) or
evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company) or rights or
warrants to subscribe for or purchase any of its securities (excluding
those rights or warrants referred to in Section 13.05(b)) (any of the
foregoing being herein in this Section 13.05(c) called the "SPECIAL
SECURITIES"), the conversion price shall be adjusted as provided in the
next sentence unless the Company elects to reserve such Special Securities
for distribution to the Holders of Securities of such Series upon the
conversion so that any such Holder converting such Securities will receive
upon such conversion, in addition to the Common Shares to which such
Holder is entitled, the amount and kind of Special Securities which such
Holder would have received if such Holder had, immediately prior to the
record date for the distribution of the Special Securities, converted
Securities into Common Shares. The conversion price, as adjusted, shall
equal the price determined by multiplying the conversion price in effect
immediately prior to such record date by a fraction the numerator of which
shall be the current market price per share (as defined for purposes of
this Section 13.05(c) in Section 13.05(e)) of Common Shares on the record
date mentioned above less the then fair market value (as determined by the
Board of Directors, whose determination shall, if made in good faith, be
conclusive) of the portion of the Special Securities so distributed
applicable to one Common Share, and the denominator of which shall be the
current market price per Common Shares (as defined in Section 13.05(e)).
In the event the then fair market value (as so determined) of the portion
of the Special Securities so distributed applicable to one Common Share is
equal to or greater than the current market price per Common Share (as
defined in Section 13.05(e)) on the record date mentioned above, in lieu
of the foregoing adjustment, adequate provision shall be made so that each
Holder of Securities of such Series shall have the right to receive the
amount and kind of Special Securities such holder would have received had
he converted such Securities immediately prior to the record date for the
distribution of the Special Securities. Such adjustment shall become
effective immediately, except as provided in Section 13.05(h), after the
record date for the determination of shareholders entitled to receive such
distribution.
(d) If, pursuant to Section 13.05(b) or 13.05(c), the conversion
price shall have been adjusted because the Company has declared a
dividend, or made a distribution, on the outstanding Common Shares in the
form of any right or warrant to purchase securities of the Company, or the
Company has issued any such right or warrant, then, upon the expiration of
any such unexercised right or unexercised warrant, the conversion price
shall forthwith be adjusted to equal the conversion price that would have
applied had such right or warrant never been declared, distributed or
issued.
(e) For the purpose of any computation under Section 13.05(b), the
current market price per Common Share on any date shall be deemed to be
the average of the reported last sales prices for the 30 consecutive
Trading Days (as defined below) commencing 45 Trading Days before the date
in question. For the purpose of any computation under Section 13.05(c),
the current market price per Common Share on any date shall be deemed to
be the average of the reported last sales prices for the ten consecutive
Trading Days before the date in question. The reported last sales price
for each day (whether for purposes of Section 13.05(b) or 13.05(c)) shall
be the reported last
50
sales price, regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape or,
if the Common Shares are not listed or admitted to trading on the New York
Stock Exchange, on the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the Nasdaq
National Market or, if the Common Shares are not quoted on the Nasdaq
National Market, the average of the closing bid and asked prices on such
day in the over-the-counter market as furnished by any New York Stock
Exchange member firm regularly making a market in the Common Shares
selected for such purpose by the Board of Directors or, if no such
quotations are available, the fair market value of the Common Shares as
determined by a New York Stock Exchange member firm regularly making a
market in the Common Shares selected for such purpose by the Board of
Directors. As used herein, the term "Trading Day" with respect to the
Common Shares means (x) if the Common Shares are listed or admitted for
trading on the New York Stock Exchange or another national securities
exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business, (y) if the Common
Shares are quoted on the Nasdaq National Market, a day on which trades may
be made on the Nasdaq National Market or (z) otherwise, any day other than
a Saturday or Sunday or a day on which banking institutions in the State
of New York are authorized or obligated by law or executive order to
close.
(f) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price. Any adjustments that by reason of this Section 13.05(f) are
not required to be made, however, shall be carried forward and taken into
account in any subsequent adjustment. Any adjustment required to be made
in accordance with the provisions of this Article 13 shall be made not
later than such time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Shares. All calculations
under this Article 13 shall be made to the nearest cent or to the nearest
one-one hundredth of a share, as the case may be, with one-half cent and
one-two hundredth of a share, respectively, being rounded upward. The
Company shall be entitled to make such reductions in the conversion price,
in addition to those required by this Section 13.05, as it in its
discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or warrants to
purchase stock or securities or distribution of other assets (other than
cash dividends) made by the Company to its shareholders shall not be
taxable.
(g) Whenever the conversion price is adjusted, the Company shall
file with the Trustee, at the Corporate Trust Office of the Trustee, and
with the office or agency maintained by the Company for the conversion of
Securities of such Series pursuant to Section 3.02, an Officers'
Certificate, setting forth the conversion price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment. Neither the Trustee nor any conversion agent shall be under
any duty or responsibility with respect to any such certificate or any
facts or computations set forth therein, except to exhibit said
certificate from time to time to any Holder of a Security of such Series
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desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion price to be mailed to the Holders of
Securities of such Series, as their names and addresses appear upon the
Security register.
(h) In any case in which this Section 13.05 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (y)
issuing to the Holder of any Security of such Series converted after such
record date and before the occurrence of such event the additional Common
Shares issuable upon such conversion by reason of the adjustment required
by such event over and above the Common Shares issuable upon such
conversion before giving effect to such adjustment and (z) paying to such
holder any amount in cash in lieu of any fractional Common Shares pursuant
to Section 13.06.
SECTION 13.06 No Fractional Shares to Be Issued. No fractional Common
Shares shall be issued upon any conversion of Securities. If more than one
Security of any Series shall be surrendered for conversion at one time by the
same Holder, the number of full Common Shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities of such Series (or specified portions thereof to the
extent permitted hereby) so surrendered. Instead of a fraction of a Common Share
which would otherwise be issuable upon conversion of any Security or Securities
(or specified portions thereof), the Company shall pay a cash adjustment
(computed to the nearest cent, with one-half cent being rounded upward) in
respect of such fraction of a share in an amount equal to the same fractional
interest of the reported last sales price (as defined in Section 13.05(e)) of
the Common Shares on the Trading Day (as defined in Section 13.05(e)) next
preceding the day of conversion.
SECTION 13.07 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Company with, or
merger of the Company into, any other corporation (other than a consolidation or
merger in which the Company is the surviving corporation), or in the case of any
sale or transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture in accordance with the provisions of Articles 8 and 9 as
they relate to supplemental indentures, providing that the Holder of each
Outstanding Security that was convertible into Common Shares shall have the
right thereafter to convert such Security into the kind and amount of shares of
stock and other securities and property, including cash, receivable upon such
consolidation, merger, sale or transfer by a holder of the number of Common
Shares into which such Securities might have been converted immediately prior to
such consolidation, merger, sale or transfer. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 13. Neither the
Trustee nor any conversion agent shall have any liability or responsibility for
determining the correctness of any provision contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or other
securities or property receivable by Holders of the Securities upon the
conversion of their Securities after any such consolidation, merger, sale or
transfer, or to any adjustment to be made with respect thereto and, subject to
the provisions of Section 313 of the Trust Indenture Act, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Officers' Certificate with respect thereto
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and an Opinion of Counsel with respect to legal matters related thereto. If in
the case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder of the Securities includes stock
or other securities and property of a corporation other than the successor or
purchasing corporation, then such supplemental indenture shall also be executed
by such other corporation and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of Directors
shall reasonably consider necessary. The above provisions of this Section 13.07
shall similarly apply to successive consolidations, mergers, sales or transfers.
SECTION 13.08 Notice to Holders of the Securities of a Series Prior to
Taking Certain Types of Action. With respect to the Securities of any Series, in
case:
(a) the Company shall authorize the issuance to all holders of
Common Shares of rights or warrants to subscribe for or purchase shares of
its capital stock or of any other right;
(b) the Company shall authorize the distribution to all holders of
Common Shares of evidences of indebtedness or assets (except for cash
dividends or distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Shares or of any
consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such Series
pursuant to Section 3.02, and shall cause to be mailed to the Holders of
Securities of such Series at their last addresses as they shall appear on the
Security register, at least ten days prior to the applicable record date
hereinafter specified, a notice stating (i) the date as of which the holders of
Common Shares to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of Common Shares shall be
entitled to exchange their Common Shares for securities or other property, if
any, deliverable upon such subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 13.08 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action, or the vote upon any of the foregoing.
SECTION 13.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Company at all times will reserve and keep available out of each
class of its authorized Common Shares, free from preemptive rights, solely for
the purpose of issue upon
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conversion of Securities of any Series as herein provided, such number of Common
Shares as shall then be issuable upon the conversion of all Outstanding
Securities of such Series. The Company covenants that all Common Shares which
shall be so issuable, when issued or delivered, shall be duly and validly issued
Common Shares into which Securities of such Series are convertible, and shall be
fully paid and nonassessable, free of all liens and charges and not subject to
preemptive rights and that, upon conversion, the appropriate capital stock
accounts of the Company will be duly credited.
SECTION 13.10 Compliance with Governmental Requirements. If any Common
Shares required to be reserved for purposes of conversion of Securities
hereunder require registration or listing with or approval of any governmental
authority under any Federal or State law, pursuant to the Securities Act or the
Securities Exchange Act or any national or regional securities exchange on which
the Common Shares are listed at the time of delivery of any Common Shares, the
Company will use its best efforts to cause such shares to be duly registered,
listed or approved, as the case may be, before such shares may be issued upon
conversion.
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued upon
Conversion. The issuance of certificates for Common Shares upon the conversion
of Securities shall be made without charge to the converting Holders for any tax
(including documentary and stamp taxes) in respect of the issuance and delivery
of such certificates, and such certificates shall be issued in the respective
names of, or in such names as may be directed by, the Holders of the Securities
converted. The Company, however, shall not be required to pay any tax that may
be payable in respect of any transfer involved in the issuance and delivery of
any such certificate in a name other than that of the Holder of the Security
converted, and the Company shall not be required to issue or deliver such
certificate unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions. The
Trustee and any conversion agent shall have no duty to any Holder to determine
whether any facts exist that may require any adjustment of the conversion rate,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, in making the same. Neither the Trustee nor
any conversion agent shall be accountable with respect to the registration under
securities laws, listing, validity or value (or the kind or amount) of any
Common Shares, or of any other securities or property, that at any time may be
issued or delivered upon the conversion of any Security, and neither the Trustee
nor any conversion agent makes any representation with respect thereto. Neither
the Trustee nor any conversion agent shall be responsible for any failure of the
Company to make any payment or to issue, transfer or deliver any Common Shares
or stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion. The Trustee and any conversion agent,
subject to the provisions of Section 313 of the Trust Indenture Act, shall not
be responsible for any failure of the Company to comply with any of the
covenants contained in this Article 13.
SECTION 13.13 Conversion of Securities into Preferred Shares or Other
Securities. Notwithstanding anything to the contrary in this Article 13, the
Company may issue Securities that are convertible into Preferred Shares or other
securities of the Company, including Preferred Shares convertible into Common
Shares, in which case all terms and conditions relating to the
54
conversion of Securities into Preferred Shares or other securities, including
any terms similar to those provided in Sections 13.01 through 13.12, shall be as
provided in or pursuant to an appropriate resolution of the Board of Directors
or in any indenture supplemental hereto or as otherwise contemplated by Section
2.03.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
FLUOR CORPORATION
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
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