LIBERTY FINANCIAL COMPANIES, INC.
Issuer
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INDENTURE
Dated as of [____]
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[!]
Trustee
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Providing for the Issuance of Debt Securities in Series
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310(a)(1) ........................................................7.10
310(a)(2) ........................................................7.10
310(a)(3) ........................................................N.A.
310(a)(4) ........................................................N.A.
310(a)(5) ........................................................N.A.
310(b) ...........................................................7.08; 7.10
310(c) ...........................................................N.A.
311(a) ...........................................................7.11
311(b) ...........................................................7.11
311(c) ...........................................................N.A.
312(a) ...........................................................2.05
312(b) ...........................................................13.03
312(c) ...........................................................13.03
313(a) ...........................................................7.06
313(b)(1) ........................................................N.A.
313(b)(2) ........................................................7.06
313(c) ...........................................................7.06
313(d) ...........................................................7.06
314(a) ...........................................................4.04
314(b) ...........................................................N.A.
314(c)(1) ........................................................13.04
314(c)(2) ........................................................13.04
314(c)(3) ........................................................N.A.
314(d) ...........................................................N.A.
314(e) ...........................................................13.05
314(f) ...........................................................N.A.
315(a) ...........................................................7.01(b)
315(b) ...........................................................7.05
315(c) ...........................................................7.01(a)
315(d) ...........................................................7.01(c)
315(e) ...........................................................6.12
316(a)(last sentence) ............................................13.06
316(a)(1)(A) .....................................................6.09
316(a)(1)(B) .....................................................6.10
316(a)(2) ........................................................N.A.
316(b) ...........................................................6.07
317(a)(1) ........................................................6.04
317(a)(2) ........................................................6.04
317(b) ...........................................................2.04
318(a) ...........................................................13.01
N.A. means Not Applicable
Note: This cross-reference table is not part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions............................................................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act......................................6
Section 1.03. Rules of Construction..................................................................6
ARTICLE TWO
THE SECURITIES
Section 2.01. Terms and Form.........................................................................6
Section 2.02. Execution and Authentication..........................................................10
Section 2.03. Registrar and Paying Agent............................................................13
Section 2.04. Paying Agent to Hold Money in Trust...................................................13
Section 2.05. Securityholder Lists..................................................................13
Section 2.06. Transfer, Registration and Exchange...................................................14
Section 2.07. Replacement Securities................................................................16
Section 2.08. Outstanding Securities................................................................17
Section 2.09. Temporary Securities..................................................................17
Section 2.10. Securities in Global Form.............................................................18
Section 2.11. Cancellation..........................................................................18
Section 2.12. Defaulted Interest....................................................................18
Section 2.13. Persons Deemed Owners.................................................................19
Section 2.14. CUSIP Numbers.........................................................................19
ARTICLE THREE
REDEMPTION
Section 3.01. Applicability of Article..............................................................20
Section 3.02. Notice to Trustee.....................................................................20
Section 3.03. Selection of Securities to Be Redeemed................................................20
Section 3.04. Notice of Redemption..................................................................21
Section 3.05. Effect of Notice of Redemption........................................................22
Section 3.06. Deposit of Redemption Price or Securities.............................................22
Section 3.07. Securities Redeemed in Part...........................................................23
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.................................................................23
Section 4.02. Maintenance of Office or Agency.......................................................23
Section 4.03. Money for Securities Payments to Be Held in Trust.....................................24
Section 4.04. SEC Reports...........................................................................26
Section 4.05. Statement as to Compliance............................................................26
Section 4.06. Limitations on Liens on Stock of Restricted Subsidiaries..............................26
Section 4.07. Limitations on Issue or Disposition of Stock of Restricted Subsidiaries...............27
Section 4.08. Additional Amounts....................................................................27
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Section 4.09. Waiver of Certain Covenants...........................................................28
ARTICLE FIVE
SUCCESSOR CORPORATION AND ASSUMPTION
Section 5.01. When Company May Merge, etc...........................................................28
Section 5.02. Successor Corporation Substituted.....................................................28
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.....................................................................29
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................31
Section 6.03. Application of Proceeds...............................................................33
Section 6.04. Suits for Enforcement.................................................................33
Section 6.05. Restoration of Rights on Abandonments of Proceedings..................................34
Section 6.06. Limitations on Suits by Securityholders...............................................34
Section 6.07. Unconditional Right of Securityholder to Institute Certain Suits......................34
Section 6.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...............35
Section 6.09. Control by Holders of Securities......................................................35
Section 6.10. Waiver of Past Defaults...............................................................35
Section 6.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances..........36
Section 6.12. Right of Court to Require Filing of Undertaking to Pay Costs..........................37
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.....................................................................37
Section 7.02. Rights of Trustee.....................................................................39
Section 7.03. Individual Rights of Trustee..........................................................39
Section 7.04. Trustee's Disclaimer..................................................................40
Section 7.05. Notice of Defaults....................................................................40
Section 7.06. Reports by Trustee to Holders.........................................................40
Section 7.07. Compensation and Indemnity............................................................40
Section 7.08. Replacement of Trustee................................................................41
Section 7.09. Successor Trustee by Merger, etc......................................................42
Section 7.10. Eligibility; Disqualification.........................................................42
Section 7.11. Preferential Collection of Claims against Company.....................................42
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Termination of the Company's Obligations..............................................42
Section 8.02. Termination of the Company's Obligations under Certain Circumstances..................43
Section 8.03. Application of Trust Money............................................................45
Section 8.04. Repayment to Company..................................................................45
Section 8.05. Indemnity for Government Obligations..................................................45
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders............................................................45
Section 9.02. With Consent of Holders...............................................................47
Section 9.03. Compliance with Trust Indenture Act...................................................48
Section 9.04. Revocation and Effect of Consents.....................................................48
Section 9.05. Notation on or Exchange of Securities.................................................48
Section 9.06. Trustee to Sign Amendments, etc.......................................................49
ARTICLE TEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 10.01. Applicability of Article..............................................................49
ARTICLE ELEVEN
CONCERNING THE SECURITYHOLDERS
Section 11.01. Evidence of Action Taken by Securityholders...........................................49
Section 11.02. Proof of Execution of Instruments and of Holding of Securities........................50
Section 11.03. Holders to be Treated as Owners.......................................................51
Section 11.04. Securities Owned by Company Deemed Not Outstanding....................................52
Section 11.05. Right of Revocation of Action Taken...................................................52
Section 11.06. Meetings of Holders...................................................................52
Section 11.07. Call, Notice and Place of Meetings....................................................53
Section 11.08. Persons Entitled to Vote at Meetings..................................................53
Section 11.09. Quorum; Action........................................................................53
Section 11.10. Determination of Voting Rights; Conduct and Adjournment of Meetings...................54
Section 11.11. Counting Votes and Recording Action of Meetings.......................................55
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article..............................................................55
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.................................55
Section 12.03. Redemption of Securities for Sinking Fund.............................................56
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls..........................................................57
Section 13.02. Notices...............................................................................57
Section 13.03. Communication by Holders with Other Holders...........................................58
Section 13.04. Certificate and Opinion as to Conditions Precedent....................................58
Section 13.05. Statements Required in Certificate or Opinion.........................................59
Section 13.06. When Treasury Securities Disregarded..................................................59
Section 13.07. Legal Holidays........................................................................59
Section 13.08. Governing Law.........................................................................60
Section 13.09. No Adverse Interpretation of Other Agreements.........................................60
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Section 13.10. Successors............................................................................60
Section 13.11. Duplicate Originals...................................................................60
Section 13.12. Securities in Foreign Currencies......................................................60
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INDENTURE dated as of _____, _____, between Liberty Financial
Companies, Inc., a company incorporated under the laws of Massachusetts (the
"Company"), and [!, a Massachusetts] banking corporation, as trustee hereunder
("Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's Securities
issued hereunder:
Recitals
The Company has authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness ("Securities") to be issued in one or more
series as herein provided.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1 Definitions.
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"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders, or as otherwise specified in the terms of a Security
established pursuant to Section 2.01, and which are owing to such Holders.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notice and demands. See Section 2.03.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authorized Newspaper" means a newspaper printed in the official
language or in the English language of the country of publication and
customarily published at least once a day on each Business Day in each calendar
week and of general circulation in New York, New York or in any other place as
required in this Indenture, whether or not such newspaper is published on Legal
Holidays, or, with respect to the Securities of any series, such other
newspaper(s), as may be specified in or pursuant to the Board Resolution of the
Company or supplement to this Indenture pursuant to which such series of
Securities is issued. Whenever, under the provisions of this Indenture or such
Board Resolutions, two or more publications of a notice or other communication
are required or permitted, such publications may be in the same or different
newspapers. If, because of temporary or permanent suspension of publication or
general circulation of any newspaper or for any other reason, it is impossible
or impracticable to publish
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any notices required by this Indenture or a Board Resolution in the manner
provided, then such publication in lieu thereof or such other notice as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Bankruptcy Law" shall have the meaning set forth in Section 7.07.
"Bearer Security" means any Security in the form established pursuant
to Section 2.01 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company or the
Executive Committee or any other committee of the Board of Directors duly
authorized to act for the Company hereunder.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered to
the Trustee.
"Business Day", except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, with respect to any Place of Payment means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a Legal Holiday in that Place of
Payment.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) corporate stock.
"Company" means the party named in the first paragraph of this
Indenture until a successor replaces it pursuant to the Indenture and thereafter
means such successor.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the Board,
the President, the Chief Financial Officer or the Treasurer thereof or any other
officer specifically authorized to act by the Board of Directors of the Company
as certified to the Trustee, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at [______], Boston,
Massachusetts [______].
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" shall have the meaning set forth in Section 4.06.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Discharged" shall have the meaning set forth in Section 8.02.
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"Event of Default" shall have the meaning set forth in Section 6.01.
"Government Obligations" with respect to any series of Securities means
direct noncallable obligations of the government which issued the currency in
which the Securities of that series are denominated, noncallable obligations the
payment of the principal of and interest on which is fully guaranteed by such
government, and noncallable obligations on which the full faith and credit of
such government is pledged to the payment of the principal thereof and interest
thereon, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of such depositary receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depositary receipt.
"Holder" or "Securityholder" means, with respect to a Registered
Security, a Person in whose name such Security is registered on the Security
Register and, with respect to a Bearer Security or any coupon, the bearer
thereof.
"Indenture" means this Indenture, as it may from time to time be
amended or supplemented and shall include the forms and terms of particular
series of Securities established as contemplated herein.
"Independent Public Accountants" means independent public accountants
or a firm of independent public accountants who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such public accountants or firm shall be entitled to rely
upon any Opinion of Counsel as to the interpretation of any legal matters
relating to the Indenture or certificates required to be provided hereunder.
"Legal Holiday" shall have the meaning set forth in Section 13.07.
"Lien" means any mortgage, pledge, security interest or lien, or other
encumberance of any nature whatsoever.
"Notice of Default" shall have the meaning set forth in Section 6.01.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or Secretary thereof or any other officer specifically
authorized to act by the Board of Directors of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer other than the Secretary and an Assistant Treasurer or an
Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who
(except as otherwise expressly provided in this Indenture) may be an employee of
or counsel to or for the Company, or any other legal counsel acceptable to the
Trustee.
3
"Original Issue Discount Security" means any Security which provides
that an amount less than its principal amount is due and payable upon
acceleration of the maturity thereof after an Event of Default.
"Outstanding", when used with respect to Securities or a series, shall
have the meaning set forth in Section 2.08.
"Paying Agent" shall have the meaning set forth in Section 2.03.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.01 with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, 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 and any
Additional Amounts on the Securities of that series are payable as specified as
provided pursuant to Section 2.01.
"principal", whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any," and, whenever used with reference to any Security which by its terms
provides (or as to which mandatory provisions of law provide) that less than the
principal amount thereof shall be due and payable upon a declaration of the
acceleration of the maturity thereof, and in the contexts of such a declaration,
of proving a claim under bankruptcy, insolvency or similar laws, or of
determining whether the holders of the requisite aggregate principal amount of
the Securities of any or all series then Outstanding have concurred in any
request, demand, authorization, direction, notice, consent, waiver or other
action by Securityholders hereunder, shall mean the portion of such principal
amount so provided to be due and payable upon a declaration of acceleration of
the maturity thereof.
"Redemption Date" means the date fixed for redemption of any Security
to be redeemed pursuant to this Indenture.
"Redemption Price" means the principal amount of any Security to be
redeemed.
"Registered Security" means any Security registered in the Security
Register.
"Registrar" shall have the meaning set forth in Section 2.03.
"Restricted Subsidiary" means each of [list restricted subsidiaries],
and any successor to all or a principal part of the business or properties of
any thereof and any other subsidiary which the Board of Directors designates as
a Restricted Subsidiary.
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"SEC" means the Securities and Exchange Commission as from time to time
constituted, created under the Securities Exchange Act of 1934, as amended, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties assigned to it under the TIA, then the body
performing such duties at such time.
"Securities" means the debt securities, as amended or supplemented from
time to time pursuant to this Indenture, that are issued under this Indenture.
"Security Register" shall have the meaning set forth in Section 2.03.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb), as amended from time to time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"U.S. Depository" or "Depository" means, with respect to the Securities
of any series issuable or issued in whole or in part in the form of one or more
global Securities, the Person designated as U.S. Depository pursuant to Section
2.01, which must be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and, if so provided pursuant to Section 2.01 with
respect to the Securities of any series, any successor to such Person. If at any
time there is more than one such Person, "U.S. Depository" shall mean, with
respect to any series of Securities, the qualifying entity which has been
appointed with respect to the Securities of that series.
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances in the election of
directors, managers or trustees of such Corporation (irrespective of whether or
not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity on a series of
Securities at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
5
Section 1.02. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture Securities" means the Securities.
"Indenture Security Holder" means a Securityholder.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings thereby assigned to them.
Section 1.03. Rules of Construction.
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Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural include
the singular;
(4) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting principles;
and
(5) the Article and Section headings herein and in the Table of
Contents are for convenience only and do not constitute a part of this Indenture
and shall not affect the meaning, construction or effect of this Indenture.
ARTICLE TWO
THE SECURITIES
Section 2.01. Terms and Form.
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The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series of Securities and shall bear the title, interest, if any, at
the rates and from the dates, shall mature at the times, may be redeemable at
the prices and upon the terms, shall be denominated and payable at the place or
places and in the currency or currencies (which may be other than United States
6
dollars), including composite currencies, and shall contain or be subject to
such other terms as shall be approved by or pursuant to a Board Resolution of
the Company or in one or more supplements to this Indenture.
The Securities of each series hereunder shall be in one or more forms
approved from time to time by or pursuant to a Board Resolution of the Company
or in one or more supplements to this Indenture establishing the following:
(1) the title or designation of the Securities and the series in which
such Securities shall be included (which, unless such Securities constitute part
of a series of Securities previously issued, shall distinguish the Securities of
the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Sections 2.06, 2.07, 2.09 or 3.07);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both; any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series; and whether any Securities of the series
are to be issuable initially in global form and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such interest for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner specified in Section 2.09 and (ii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to any
global Security;
(4) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the Outstanding Bearer Securities
of the series) payable in respect of any date or dates prior to the exchange of
such temporary Bearer Security for definitive Securities of the series shall be
paid to any clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such date or dates;
(6) the date or dates on which the principal of such Securities is
payable;
(7) the rate or rates at which such Securities shall bear interest, if
any, or the method in which such rate or rates are determined, the date or dates
from which such interest shall accrue, the dates on which such interest shall be
payable and the record date for Holders entitled to the interest payable on
Registered Securities on any such date, whether and under what circumstances
Additional Amounts on such Securities shall be payable and, if so, whether the
Company has the option to redeem the affected Securities rather than pay such
Additional
7
Amounts, and the basis upon which interest shall be calculated if other than as
otherwise provided in this Indenture;
(8) the place or places, if any, in addition to or other than [Boston,
Massachusetts and] The Borough of Manhattan, The City of New York, New York or
the City of Chicago, Illinois where the principal of and interest on or
Additional Amounts, if any, payable in respect of such Securities shall be
payable;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities may be redeemed, in
whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase such
Securities pursuant to a sinking fund, at the option of a Holder thereof or
otherwise and the period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities shall be redeemed or
purchased in whole or in part, pursuant to such obligation, and any provisions
for the remarketing of such Securities;
(11) the denominations in which Registered Securities of the series, if
any, shall be issuable, and the denominations in which Bearer Securities of the
series, if any, shall be issuable, in either case if other than as otherwise
provided in this Indenture;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.02;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in which
payment of the principal of or interest, if any, and any Additional Amounts in
respect of such Securities shall be payable and whether the Securities of the
series may be discharged other than as provided in Article 8;
(14) if the principal of or interest, if any, and any Additional
Amounts in respect of such Securities are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, including composite
currencies, other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election may be made;
(15) if the amount of payments of principal of or interest, if any, or
any Additional Amounts in respect of such Securities may be determined with
reference to an index, formula or other method based on a coin or currency other
than that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such certificates,
documents or conditions;
8
(17) any terms which may be related to warrants issued by the Company
in connection with, or for the purchase of, Securities of such series, including
whether and under what circumstances the Securities of any series may be used
toward the exercise price of any such warrants;
(18) the terms and conditions upon which the Securities of the series
will be convertible into shares of common stock or other securities of the
Company, including the conversion price, conversion period and other conversion
provisions.
(19) any other events of default or covenants with respect to
Securities of such series;
and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
If the form of the Security of any series is approved by or pursuant to
a Board Resolution of the Company, an Officers' Certificate of the Company
delivered to the Trustee shall state that all conditions precedent relating to
the authentication and delivery of such Security have been complied with and
shall be accompanied by a copy of the Board Resolution of the Company by or
pursuant to which the form of such Security has been approved. The Securities
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Security shall be dated the date of its authentication. Each
Security may contain any other terms as are not inconsistent with the provisions
of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, the time or times at
which the principal thereof may be payable, the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in the Officers' Certificate hereinabove
described 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 or
to establish additional terms of such series of Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing such
series of Securities, as Bearer Securities, with or without coupons and, in
either case, may be issued initially, temporarily or permanently in global form
(as provided in Section 2.10). Unless the form of a Security for a series
provides otherwise, the Registered Securities shall be issued in denominations
of $1,000 or integral multiples thereof and Bearer Securities shall be issuable
in the denomination of $5,000.
Except as otherwise specified as contemplated by this Section 2.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
9
Section 2.02. Execution and Authentication.
-----------------------------
Two Officers of the Company shall sign the Securities and the coupons
for the Company by manual or facsimile signature. The Company's seal, if any,
may be reproduced on the Securities, but the Company's seal shall not be
required to be included on the Securities.
If an Officer whose signature is on a Security or coupon no longer
holds that office at the time the Trustee authenticates the Security, the
Security and coupon shall be valid and binding on the Company nevertheless.
The aggregate principal amount of Securities Outstanding hereunder at
any time shall be unlimited except that such Outstanding amount (exclusive of
any premium) may not exceed the amount authorized from time to time by the Board
of Directors of the Company and except as provided in Section 2.07. Upon receipt
of a Company Order for the authentication and delivery of Securities of a
series, the Trustee shall authenticate and deliver for original issue Securities
of a series as to which an Officers' Certificate of the Company or a
supplemental indenture has been delivered to the Trustee pursuant to Section
2.01.
No Security or any coupon appertaining thereto shall be valid until the
Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security shall be
dated the date of its authentication. Bearer Securities and any temporary Bearer
Security in global form shall be dated as specified in the Officers' Certificate
of the Company or in the supplements to this Indenture contemplated by Section
2.01. The signature of the Trustee or the authenticating agent referred to below
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate thereof.
Except as permitted by Section 2.07, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
The Trustee's authentication shall be in the following form:
Dated:
10
Trustee's Certificate of Authentication
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
[!],
as Trustee
By:______________________
Authorized Signatory
11
If the forms and terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Section 2.01 and 2.02, in authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relating to such Securities the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon an Opinion of
Counsel to the effect that:
(a) the form and terms of such Securities and coupons, if any, have
been duly authorized and established pursuant to Sections 2.01 and 2.02 and
comply with this Indenture, and
(b) such Securities, when authenticated and delivered by the Trustee
and issued by the Company, and such coupons, if any, when issued by the Company,
in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary exceptions,
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of
such Securities (when established in accordance with such procedures
as may be specified from time to time in a Company Order, all as
contemplated by and in accordance with a Board Resolution or any
Officers' Certificate pursuant to Section 2.01, as the case may be)
will have been, duly authorized by the Company and established in
conformity with the provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions.
(z) With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization
by the Company of any of such Securities, the form and terms thereof
and the legality, validity, binding effect and enforceability thereof,
upon the Opinion of Counsel and other documents delivered pursuant to
Section 2.01 and this Section, as applicable, at or prior to the time
of the first authentication of Securities of such series unless and
until it has received written notification that such opinion or other
documents have been superseded or revoked. In connection with the
authentication and delivery of Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Securities do
not violate any rules, regulations or orders of any governmental
agency or commission having jurisdiction over the Company.
12
Section 2.03. Registrar and Paying Agent.
---------------------------
The Company shall designate a Registrar who shall maintain an office or
agency where Securities may be presented for registration of transfer and where
each series of Registered Securities may be presented for exchange ("Registrar")
and a Paying Agent who shall maintain an office or agency where Securities and
coupons may be presented for payment ("Paying Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Registrar shall keep a register ("Security
Register") of each series of Registered Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional Paying Agents and shall maintain the Registrar or a co-Registrar and
a Paying Agent in each place required by Section 4.02. The term "Paying Agent"
includes any additional paying agent. In the event that the Trustee shall not be
the Registrar, it shall have the right to examine the Security Register at all
reasonable times.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or the Company fails to maintain an agent
for service of notices, process and demands, or the Company fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee to be the Registrar, Paying
Agent and agent for services of notices and demands.
Section 2.04. Paying Agent to Hold Money in Trust.
------------------------------------
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or any interest or Additional Amounts on the Securities,
and shall notify the Trustee of any default by the Company (or any other obligor
on the Securities) in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall on or before each due date of the principal of or
any interest or Additional Amounts on any Securities segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay to the trustee all sums so held in trust
by such Paying Agent. Upon doing so the Paying Agent shall have no further
liability for the money.
Section 2.05. Securityholder Lists.
---------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Registered Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee from information in the possession or
control of the Company (a) on or before each interest payment date, as of the
relevant record date, for any series of Securities, (b) pursuant to the form of
Security for each series of non-interest bearing Securities and (c) at such
other times as the Trustee may request in
13
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders, provided that if the
provisions of (a) or (b) do not provide for the furnishing of such information
at stated intervals of not more than six months, at least as frequently as
semiannually, not later than May 15 and November 15 of each year.
Section 2.06. Transfer, Registration and Exchange.
------------------------------------
When a Registered Security is presented at an office or agency
maintained for that series pursuant to Section 4.02 in proper form for
registration of transfer with a request to register a transfer, the Registrar or
co-Registrar at that office shall register the transfer as requested.
At the option of the Securityholder, Registered Securities of any
series may be exchanged upon surrender to the Registrar or a co-Registrar for
Registered Securities of the same series of like aggregate principal amount,
stated maturity and tenor and of other authorized denominations upon surrender
at any office or agency maintained for that series pursuant to Section 4.02.
If so provided with respect to Securities of a series, at the option of
the Holder, Bearer Securities of any such series may be exchanged for Registered
Securities of the same series containing identical terms and provisions, of any
authorized denominations and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency maintained for that
series pursuant to Section 4.02, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent for that series harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent for
that series any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that except as otherwise provided in Section 4.02,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency maintained for that series pursuant
to Section 4.02 in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on any record
date for the payment of interest and any Additional Amounts thereon and before
the opening of business at such office or agency on the relevant payment date
therefor, such Bearer Security shall be surrendered without the coupon relating
to such payment date or proposed date of payment, as the case may be (or if such
coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest will
not be payable on such payment date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
14
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Registrar or co-Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's request.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.01, any global Security shall be exchangeable only if
(i) the Securities Depository is at any time unwilling, unable or ineligible to
continue as Securities Depository and a successor Depository is not appointed by
the Company within 90 days of the date the Company is so informed in writing,
(ii) the Company executes and delivers to the Trustee a Company Order to the
effect that such global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for Securities of such series and of like tenor and principal
amount of any authorized form and denomination, as specified as contemplated by
Section 2.01, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, Company shall deliver
to the Trustee definitive Securities of that series in aggregate principal
amount equal to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Securities shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such Depository, as the case may be, which
instructions shall be in writing but need not be accompanied by an Officers'
Certificate of the Company or an Opinion of Counsel, as shall be specified in
the Company Order with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged which shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof (unless the Securities of the series
are not issuable both as Bearer Securities and as Registered Securities, in
which case the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as specified as
contemplated by Section 2.01); provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise specified as
contemplated by Section 2.01) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such depository or the
U.S. Depository referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued in exchange for
any portion of a global Security after the close of business at the office or
agency where such exchange occurs on any record date for the payment of interest
or any Additional Amounts thereon, and before the opening of business at such
office or agency on the relevant payment date therefor, interest and any
Additional Amounts in respect of such
15
Registered Security will not be payable on such payment date, but will be
payable on such payment date only to the Person to whom interest or any
Additional Amounts in respect of such portion of such global Security is payable
in accordance with the provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.09, 3.07 or 9.05 not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer
of, or exchange any Securities of any series for a period of 15 days next
preceding the day of any selection of Securities of such series to be redeemed
pursuant to Section 3.03, or (b) to register the transfer of or exchange any
Securities of any series selected, called or being called for redemption in
whole or in part except, in the case of any Registered Security to be redeemed
in part, the portion thereof not so to be redeemed or (c) to exchange any Bearer
Security so selected for redemption except, to the extent provided with respect
to Securities of a series, that such a Bearer Security may be exchanged for a
Registered Security of that series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
endorsed thereon surrendered upon such registration of transfer or exchange.
Section 2.07. Replacement Securities.
-----------------------
If the Holder of a mutilated or defaced Security or a Security with a
mutilated or defaced coupon appertaining to it surrenders such Security to the
Trustee or if the Holder of a Security presents evidence to the satisfaction of
the Company and the Trustee that the Security has been lost, destroyed or
wrongfully taken or that a coupon has been lost, stolen or wrongfully taken and
surrenders the Security to which such coupon appertains with all appurtenant
coupons not so lost, stolen or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security of the same series and of like
tenor, with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security. In case any such mutilated, defaced, lost, destroyed or
wrongfully taken Security or coupon has or is about to become due and payable,
the Company may pay the Security or coupon instead of issuing a new Security or
coupon; provided, however, that payment of principal of and any interest on and
Additional Amounts with respect to Bearer Securities shall, except as otherwise
provided in Section 4.02, be payable only at an office or agency located outside
the United States and, unless otherwise specified as contemplated by Section
2.01, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the coupons appertaining thereto. If required by the Trustee or
the Company, an indemnity bond must be provided which is sufficient in the
judgment of the Company and the Trustee to protect the Company and the Trustee
or any Agent from any loss which any of them may suffer if a Security is
replaced. The Company and the Trustee may charge the Holder for their fees and
expenses in replacing a Security.
16
Every replacement Security of any series, with its coupons, if any, is
an additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued under this
Indenture.
Section 2.08. Outstanding Securities.
-----------------------
Securities Outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it and those described in this
Section. A Security does not cease to be Outstanding because the Company or one
of its Affiliates holds the Security except as provided in Section 13.06.
If a Security is replaced pursuant to Section 2.07, it ceases to be
Outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a Redemption Date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be Outstanding and interest on them ceases to accrue,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
If the Company is deemed to be discharged from its obligations with
respect to the Securities of any series pursuant to Section 8.01 or 8.02, the
Securities of such series shall cease to be Outstanding.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.01, as adjusted
pursuant to Section 13.12 if applicable.
Section 2.09. Temporary Securities.
----------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities and, if Bearer Securities, temporary coupons shall be substantially
in the form of definitive Securities and, if Bearer Securities, definitive
coupons but may have variations in form that the Company considers appropriate
for temporary Securities. In the case of Bearer Securities of any series, such
temporary Securities may be in global form representing all of the Outstanding
Bearer Securities of such series. Except in the case of temporary Securities in
global form (which shall be exchanged in accordance with the provisions
thereof), without unreasonable delay, the Company shall prepare definitive
Securities (accompanied by any unmatured coupons pertaining thereto) of like
tenor as the temporary Securities.
17
After the preparation of definitive Securities of a series, the
temporary Securities of such series shall be exchangeable upon request for
definitive Securities of such series containing identical terms and provisions
upon surrender of the temporary Securities of such series at an office or agency
of the Company maintained for such purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series containing
identical terms and provisions; provided, however, that no definitive Bearer
Security, except as provided pursuant to Section 2.01, shall be delivered in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth therein. Unless
otherwise specified as contemplated by Section 2.01 with respect to a temporary
global Security, until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
Section 2.10. Securities in Global Form.
--------------------------
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time 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, or
changes in the rights of Holders, of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be specified
therein.
Section 2.11. Cancellation.
-------------
The Company at any time may deliver Securities or coupons to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment and
all coupons surrendered for payment. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment or cancellation and all coupons
surrendered for payment and return such cancelled Securities to the Company upon
Company Order, provided, however, that the Trustee may but shall not be required
to destroy cancelled Securities unless the Company directs their return to the
Company. The Company may not issue new Securities to replace Securities that it
has paid or delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
-------------------
If the Company defaults in a payment of interest or any Additional
Amounts on any series of Registered Securities, the Company shall pay the
defaulted interest and any Additional Amounts to Persons who are Holders of
Registered Securities of such series on a subsequent special record date in the
following manner. The Company shall fix the special record date (which shall be
between 10 and 30 days before the payment date) for the payment of such
defaulted interest and any Additional Amounts on such Securities and the payment
date for such defaulted interest. At least 15 days before the special record
date, the Company shall mail each
18
Holder of Registered Securities a notice that states the special record date,
the payment date and the amount of defaulted interest and any Additional Amounts
to be paid, provided the Company has made arrangements satisfactory to the
Trustee for payment of the aggregate amount to be paid on such payment date. On
such payment date the Trustee shall pay out of funds provided by the Company
such defaulted interest and any Additional Amounts. In case a Bearer Security of
any series is surrendered at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or
agency on any special record date and before the opening of business at such
office or agency on the related proposed date for payment of defaulted interest
and any Additional Amounts, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and defaulted interest and
any Additional Amounts will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon on or after such payment
date in accordance with the provisions of this Indenture. The Company may pay
defaulted interest and any Additional Amounts in any other lawful manner.
Section 2.13. Persons Deemed Owners.
----------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payments of
principal of and (subject to Sections 2.06 and 4.01) interest on and Additional
Amounts with respect to such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon shall be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Section 2.14. 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, provided that 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, and any such redemption shall not be affected
by any defect in or omission of such numbers.
19
ARTICLE THREE
REDEMPTION
Section 3.01. Applicability of Article.
-------------------------
This Article shall apply to the Securities of each series, if any, that
by their terms are subject to redemption at the option of the Company or
pursuant to the operation of a sinking fund or otherwise are required to be
redeemed pursuant to the terms of the Securities. If the terms of any Security
shall conflict with any provision of this Article, the terms of such Security
shall govern.
Section 3.02. Notice to Trustee.
------------------
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. If the Company wants to redeem Securities of any series
in whole or in part pursuant to the terms of the Securities of that series, the
Company shall notify the Trustee of the Redemption Date therefor and the
principal amount and other terms and provisions of the Securities to be
redeemed. Each such notice shall be accompanied by an Officers' Certificate of
the Company stating that any conditions to such redemption as provided in such
Security and in this Article have been complied with. If the Company elects to
redeem less than all of the Securities of a series with the same terms and
provisions, the Company shall notify the Trustee of such Redemption Date and of
the principal amount of such Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 3.03.
If Securities of any series by their terms are redeemable pursuant to
the operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or amount
required to satisfy such mandatory redemption payment and the portion of such
payment which is to be satisfied by delivering and crediting Securities of the
same series pursuant to Section 3.06.
If the Company wants to reduce pursuant to the terms of such Securities
the principal amount of Securities to be redeemed, it shall notify the Trustee
by Officers' Certificate of the amount of the reduction and the basis for it. If
the Company wants to credit against any such redemption Securities of the same
series it has not previously delivered to the Trustee for cancellation, it shall
deliver the Securities with such Officers' Certificate.
The Company shall give each notice and an Officers' Certificate
provided for in this Section at least 45 days before the applicable Redemption
Date (unless shorter notice is satisfactory to the Trustee or a shorter or
longer notice is required by the applicable Security).
Section 3.03. Selection of Securities to Be Redeemed.
---------------------------------------
If less than all the Securities of a series with the same terms and
provisions are to be redeemed, the Trustee shall select the Securities to be
redeemed by a method the Trustee considers fair and appropriate. The Trustee
shall make the selection from such Securities Outstanding not previously called
for redemption. The Trustee may select for redemption
20
portions of the principal of Registered Securities of such series that have
denominations larger than the minimum authorized denominations for Registered
Securities of that series. Securities and portions thereof the Trustee selects
shall be in amounts equal to the smallest authorized denominations or an
integral multiple thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Registered Securities called for
redemption.
The Trustee shall promptly notify the Company and the Registrar (if
other than itself) in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Section 3.04. Notice of Redemption.
---------------------
At least 30 days but not more than 60 days before a Redemption Date
(unless a shorter or longer period is specified in the Securities to be
redeemed), the Company shall give notice of such redemption to the Holders of
the Securities to be redeemed as a whole or in part, with respect to Registered
Securities, by mailing a notice of such redemption by first-class mail to each
Holder of Registered Securities to be redeemed and, with respect to Bearer
Securities, by publishing in an Authorized Newspaper notice of such redemption
on two separate days.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price, including premium, if any, accrued interest
and Additional Amounts, if any;
(3) if less than all Securities of a series Outstanding are to be
redeemed, the identification (and, if any Security is to be redeemed in part,
the principal amount) of the particular Securities to be redeemed;
(4) the name or names and address or addresses of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price, including premium, if any, accrued
interest and Additional Amounts, if any;
(6) that interest on Securities called for redemption ceases to accrue
on and after the Redemption Date;
(7) that the redemption is pursuant to a sinking fund, if such is the
case;
21
(8) the Place or Places of Payment where such Securities are to be
surrendered for payment for the Redemption Price; and
(9) the CUSIP number, if any, of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
Section 3.05. Effect of Notice of Redemption.
-------------------------------
Once notice of redemption is given pursuant to Section 3.04, Securities
called for redemption shall become due and payable on the Redemption Date
therefor and at the applicable Redemption Price. Upon surrender to the Paying
Agent for such Securities of such Securities together with all unmatured
coupons, if any, appertaining thereto, such Securities shall be paid at the
applicable Redemption Price, plus accrued interest to the Redemption Date and
any Additional Amounts payable with respect thereto; provided, however, that any
regular payment of interest and any Additional Amounts payable with respect
thereto becoming due on the Redemption Date shall be payable, in the case of
Bearer Securities, to bearers of the coupons for such interest and Additional
Amounts upon surrender thereof and in the case of Registered Securities to the
Holders of such Securities in accordance with their terms.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of each missing
coupon or coupons may be waived by the Company and the Trustee if there shall be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent for such Security harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent for such
Security any such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest (and any Additional
Amounts) represented by coupons shall be payable only upon presentation and
surrender of these coupons at an office or agency located outside of the United
States except as otherwise provided in Section 4.02.
Section 3.06. Deposit of Redemption Price or Securities.
------------------------------------------
On or before the Redemption Date, the Company shall deposit with the
applicable Paying Agent (or if the Company is its own Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of and
accrued interest and Additional Amounts, if any, on all Securities to be
redeemed on that date.
If any Security by its terms permits any sinking fund payment
obligation to be satisfied by delivering and crediting Securities, the Company
shall deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
22
Section 3.07. Securities Redeemed in Part.
----------------------------
Upon surrender of a Security that is redeemed in part at any office or
agency maintained by the Company pursuant to Section 4.02, the Company shall
execute and Trustee shall authenticate for the Holder a new Security of the same
series equal in principal amount to the unredeemed portion of the Security
surrendered.
If a Security in global form is surrendered upon redemption in part,
the Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall be
specified in the Company Order to the Trustee with respect thereto, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.
----------------------
The Company shall pay the principal of and any interest or Additional
Amounts, if any, on the Securities of each series on the dates and in the manner
provided in the Securities, any coupons appertaining thereto and this Indenture.
At the Company's option, it can pay any interest or Additional Amounts, if any,
on Registered Securities of any series by mailing checks or drafts to the
Holders of such Securities at their addresses as shown in the Security Register.
Any interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before their maturity, in respect of the principal of such a
Security shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
The Company shall pay interest on overdue principal of any Security at
the rate borne by such Security; it shall pay interest on overdue installments
of interest or Additional Amounts, if any, at the same rate to the extent
lawful.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any record date established
to determine the Person to whom interest or Additional Amounts are payable on
the next following interest payment date therefor and before the opening of
business (at such office or agency) on such interest payment date, such Bearer
Security shall be surrendered without the coupon relating to such interest
payment date and interest will not be payable on such interest payment date in
respect of the Registered Security issued in exchange of such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Section 4.02. Maintenance of Office or Agency.
--------------------------------
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be
23
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company shall maintain, subject to any laws or regulations applicable thereto,
an office or agency in a Place of Payment for such series which is located
outside the United States where Securities of such series and the related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of such series); provided, however,
that if the Securities of such series are listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent in London, Luxembourg or any other city so required located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series) at the place specified for that purpose pursuant to Section 2.01.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; provided, however, payment of principal of
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the office of the Paying Agent in
the Borough of Manhattan, The City of New York, New York, or in the City of
Boston, State of Massachusetts if (but only if) payment of the full amount of
such principal, interest or Additional Amounts at all offices outside the United
States maintained for that purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 4.03. Money for Securities Payments to Be Held in Trust.
--------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, or interest or Additional
24
Amounts on, any of the Securities of that series, segregate and hold in trust
for the benefit of the Person entitled thereto a sum sufficient to pay the
principal or interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of,
or interest or Additional Amounts on, any Securities of that series, deposit
with any Paying Agent a sum sufficient to pay the principal or interest and
Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, interest or Additional Amounts, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of or
interest or any Additional Amounts on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any Default by the Company in the making
of any payment of principal or interest or any Additional Amounts on the
Securities of that series; and
(3) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest or any Additional Amounts
on any Security of any series and remaining unclaimed for one year after such
principal or interest has or Additional Amounts have become due and payable
shall be paid to the Company upon receipt of a Company Order to that effect, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment or to be
mailed to Holders of Registered Securities, or both,
25
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than one year after such principal or interest
or Additional Amount has become due and payable, any unclaimed balance of such
money then remaining shall be repaid to the Company.
Section 4.04. SEC Reports.
-------------
The Company shall file with the Trustee within 15 days after it files
them with the SEC 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 SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended. The Company also shall comply with the other provisions of TIA
Section 314(a).
Section 4.05. Statement as to Compliance.
---------------------------
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, commencing ______ ___, 19__ (no more than one year
after closing), a written statement, which need not comply with Section 13.05
hereof, signed by a principal executive officer, principal financial officer or
principal accounting officer, stating, as to the signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to him and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(b) The Company shall deliver to the Trustee, within thirty days after
the Company obtains knowledge of the occurrence thereof, written notice of any
Default.
Section 4.06. Limitations on Liens on Stock of Restricted Subsidiaries.
---------------------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary to,
issue, assume or guarantee any debt for money borrowed (hereafter in this
Section referred to as "Debt") secured by a mortgage, security interest, pledge,
lien or other encumbrance upon any shares of stock of any Restricted Subsidiary
(whether such shares of stock are now owned or hereafter acquired) without in
any such case effectively providing concurrently with the issuance, assumption
or guarantee of any such Debt that the Securities (together with, if the Company
shall so determine, any other indebtedness of or guarantee by the Company
ranking equally with the Securities and then existing or thereafter created)
shall be secured equally and ratably with such Debt.
26
Section 4.07. Limitations on Issue or Disposition of Stock of
Restricted Subsidiaries.
-----------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary to,
issue, sell, assign, transfer or otherwise dispose of, directly or indirectly,
any of the Capital Stock (other than nonvoting preferred stock) of any
Restricted Subsidiary (except to the Company or to one or more Restricted
Subsidiaries or for the purpose of qualifying directors); provided, however,
that this covenant shall not apply if:
(1) all or any part of such Capital Stock is sold, assigned,
transferred or otherwise disposed of in a transaction for consideration which is
at least equal to the fair value of such Capital Stock, as determined by the
Board of Directors (acting in good faith); or
(2) the issuance, sale, assignment, transfer or other disposition is
required to comply with the order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the Company
or of one of its Restricted Subsidiaries.
Section 4.08. Additional Amounts.
------------------
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first interest
payment date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to
27
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
Section 4.09. Waiver of Certain Covenants.
----------------------------
The Company may omit in any particular instance, to comply with any
covenant or condition set forth in Sections 4.06 or 4.07, if before or after the
time for such compliance the Holders of at least a majority in principal amount
of all Outstanding Securities, and the Holders of at least a majority in
principal amount of the Outstanding Securities of each series to be affected,
shall either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
ARTICLE FIVE
SUCCESSOR CORPORATION AND ASSUMPTION
Section 5.01. When Company May Merge, etc.
----------------------------
The Company shall not consolidate with or merge into, or sell, lease or
convey all or substantially all of its assets to, another Corporation unless the
successor or transferee Corporation expressly assumes by supplemental indenture,
in form satisfactory to the Trustee, all the obligations of the Company with
respect to the Securities and this Indenture, and the Company or successor
Corporation, as the case may be, (i) shall be a Corporation organized under the
laws of one of the states in the United States and (ii) shall not, immediately
after such consolidation or merger or sale, lease or conveyance, be in default
in the performance of any covenant or condition with respect to the Securities
or the Indenture. The Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture comply with this Indenture.
Thereafter all such obligations of the predecessor corporation shall terminate.
Section 5.02. Successor Corporation Substituted.
----------------------------------
Upon any consolidation or merger, or any sale, lease or conveyance of
all or substantially all of the assets of the Company in accordance with Section
5.01, the successor Corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Corporation had been
named as the Company herein.
28
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
------------------
An "Event of Default" occurs with respect to the Securities of any
series upon:
(a) default in the payment of any installment of interest upon or any
Additional Amounts payable in respect of any of the Securities of such series as
and when the same shall become due and payable, and continuance of such default
for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise (except
the failure to make payment when due and payable if such failure results solely
from nonpayment by reason of mistake, oversight or transfer difficulties and
does not continue beyond 3 Business Days after the day on which such payment is
due and payable); or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of such
series (except the failure to make payment when due and payable if such failure
results solely from nonpayment by reason of mistake, oversight or transfer
difficulties and does not continue beyond 3 Business Days after the day on which
such payment is due and payable); or
(d) default in the performance, or breach, of any covenant or warranty
of the Company in respect of the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities (determined pursuant to Section
2.08) of all series affected thereby, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises entering a decree or
order for relief in respect of the Company in an involuntary case under the
Bankruptcy Law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for any substantial part of its property or ordering the winding up
or liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(f) the Company commencing a voluntary case under any applicable
Bankruptcy Law now or hereafter in effect, or consent to the entry of an order
for relief in an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or for
any substantial part of its property, or making any general assignment for the
benefit of creditors; or
29
(g) any other Event of Default provided in the supplemental indenture
or Board Resolutions under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default described in clause (a), (b), (c) or (d) above
(if the Event of Default under clause (d) is with respect to less than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon and Additional
Amounts payable in respect thereof, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due and payable.
If an Event of Default described in Clause (d) (if the Event of Default under
clause (d) is with respect to all series of Securities then Outstanding), (e) or
(f) occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding and
interest accrued thereon and Additional Amounts payable in respect thereof, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
The foregoing provisions, however are subject to the condition that if,
at any time after the principal (or, if the Securities are Discount Securities,
such portion of the principal as may be specified in the terms thereof) of the
Securities of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon and any Additional
Amounts payable in respect of all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest or any Additional Amounts, at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the securities, as the
case may be, to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein -- then
the Holders of a majority in aggregate
30
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class) then Outstanding, by written notice to the Company and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full or such Original Issue
Discount Securities.
Section 6.02. Collection of Indebtedness by Trustee; Trustee May
Prove Debt.
--------------------------------------------------
The Company covenants that (a) in the case default shall be made in the
payment of any installment of interest on or any Additional Amounts payable in
respect of any of the Securities of any series when such interest or Additional
Amounts shall have continued for a period of 30 days or (b) in case principal
shall have become due and payable, and such default shall be made in the payment
of all or any part of the principal of any of the Securities of any series when
the same shall have become due and payable, whether upon maturity of the
Securities of such series, or upon any redemption or by declaration or otherwise
- -- then, upon demand of the Trustee, the Company will pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole amount that
then shall have become due and payable on all Securities of such series, and
such coupons, for principal, interest or Additional Amounts, if any, as the case
may be (with interest to the date of such payment upon the overdue installments
of interest or any Additional Amounts at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series); and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection including reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and predecessor
Trustee except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the 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 moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities under Bankruptcy Law, or in case a
receiver, assignee or trustee in
31
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 in case of any other comparable judicial proceedings
relative to the Company or other obligor upon the Securities or any series, or
to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) and any Additional Amounts owing and unpaid in respect
of the Securities of any series, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in any judicial proceedings
relative to the Company or other obligor upon the Securities of any series, or
to the creditors or property of the Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the trustee
and each predecessor Trustee except as a result of negligence or bad faith and
all other amounts due to the Trustee or any predecessor Trustee under this
Indenture.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or coupons appertaining to such
Securities, may be enforced by the
32
Trustee without the possession of any of the Securities of such series or
coupons appertaining to such Securities or the production thereof at any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery or judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or of coupons appertaining to such
Securities in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or coupons appertaining to such Securities parties to any such
proceedings.
Section 6.03. Application of Proceeds.
------------------------
Any moneys collected by the Trustee pursuant to this Article with
respect to the Securities of any series shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal, interest or any Additional Amounts, upon
presentation of the several Securities and coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereof 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 Trustee and any predecessor Trustee for amounts due under
Section 7.07.
SECOND: to the Holders of Securities of such series or coupons
appertaining thereto for amounts due and unpaid on the Securities and coupons
for principal, interest and Additional Amounts, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
and coupons for principal, interest and Additional Amounts, respectively; and
THIRD: to the Person or Persons lawfully entitled thereto.
Section 6.04. Suits for Enforcement.
----------------------
In case an Event of Default has occurred, has not been waived and is
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
33
Section 6.05. Restoration of Rights on Abandonments of Proceedings.
-----------------------------------------------------
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discounted or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and in
every such case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
Section 6.06. Limitations on Suits by Securityholders.
----------------------------------------
No Holder of any Security of any series or of any coupon appertaining
thereto shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25% in aggregate principal amount of the Securities of 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 such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee, it being understood and intended, and being expressly covenanted by the
taker and Holder of every Security or coupon with every other taker and Holder
and the Trustee, that no one or more Holders of Securities of any series or
coupons appertaining to such Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holder of Securities or
coupons appertaining to such Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 6.07. Unconditional Right of Securityholder to Institute
Certain Suits.
--------------------------------------------------
Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or coupon to receive
payment of the principal of, interest on and any Additional Amounts in respect
of such Security or coupon on or after the respective due dates expressed in
such Security or coupon, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
34
Section 6.08. Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default.
-------------------------------------------------
Except as provided in Section 6.06, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or coupons.
Section 6.09. Control by Holders of Securities.
---------------------------------
The Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a separate class)
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.01)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by its
board of directors, the executive committee, or a trust committee of two or more
directors or responsible officers of the Trustee, which may include Trust
Officers, 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 forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 6.10. Waiver of Past Defaults.
------------------------
Prior to the declaration of the acceleration of the maturity of the
Securities of any series as provided in Section 6.01, the Holders of a majority
in aggregate principal amount of the
35
Securities of such series at the time Outstanding may on behalf of the Holders
of all the securities of such series waive any past default or Event of Default
described in clause (c) of Section 6.01 (or, in the case of an event specified
in clause (d) of Section 6.01 which relates to less than all series of
Securities then Outstanding, the Holders of a majority in aggregate principal
amount of the Securities then Outstanding affected thereby (each series voting
as a separate class) may waive any such default or Event of Default, or, in the
case of an event specified in clause (d) (if the Event of Default under clause
(d) relates to all series of Securities then Outstanding),(e) or (f)of Section
6.01 the Holders of Securities of a majority in principal amount of all the
Securities then Outstanding (voting as one class) may waive any such default or
Event of Default), and its consequences except a default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such waiver,
the Company, the Trustee and the Holders of the Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
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 6.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.
-----------------------------------------------------
The Trustee shall, within ninety days after the occurrence of a default
with respect to the Securities of any series, give notice of all defaults with
respect to that series known to the Trustee (i) if any Bearer Securities of that
series are then Outstanding, to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Place of Payment, (ii) if any Bearer
Securities of that series are then Outstanding, to all Holders thereof who have
filed their names and addresses with the Trustee, by mailing such notice to such
Holders at such addresses and (iii) to all Holders of then Outstanding
Registered Securities of that series, by mailing such notice to such Holders at
their addresses as they shall appear in the registry books, unless in each case
such defaults shall have been cured before the mailing or publication of such
notice (the term "defaults") for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time
or both would become, an Event of Default); provided that, except in the case of
default in the payment of the principal of or interest or Additional Amounts, if
any, on any of the Securities of such series or in the payment of any sinking or
purchase fund installment, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee comprised of two or more directors or trustees and/or
responsible officers of the Trustee, which may include Trust Officers, in good
faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.
36
Section 6.12. Right of Court to Require Filing of Undertaking to
Pay Costs.
--------------------------------------------------
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit (other than the Trustee) of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of such series, or, in
the case of any suit relating to or arising under clause (d) of Section 6.01 (if
the suit relates to Securities of more than one but less than all series), 10%
in aggregate principal amount of Securities Outstanding affected thereby, or in
the case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Securities then Outstanding), (e) or (f) of
Section 6.01, 10% in aggregate principal amount of all Securities Outstanding,
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.
The Holders of a majority in principal amount of the Outstanding
Securities of such series by notice to the Company and the Trustee may rescind
an acceleration and its consequences if (i) all existing Events of Default with
respect to the Securities of such series, other than the non-payment of the
principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived, (ii) the Company has paid or deposited
with the Trustee a sum sufficient to pay the whole amount then due and payable
on such Securities and any coupons appertaining thereto for principal and
interest and Additional Amounts, if any, with interest upon the overdue
principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest or any Additional Amounts, at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and (iii) the
rescission would not conflict with any judgment or decree. No such rescission
shall have any effect on any subsequent default or impair any right consequent
thereon.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
------------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers hereunder and use the same degree of care
and skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. The Trustee, however, 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:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the
Trustee, which may include Trust Officers, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) 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 6.09.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
except to the extent required by law. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company.
(g) The Trustee shall not be liable with respect to any action taken or
omitted to be taken or with respect to exercising any trust or power conferred
upon the Trustee, under this Indenture, by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series given pursuant to Section 6.09 of this
Indenture, relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee; and
(h) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability other than for
its own negligence, willful misconduct or bad faith, in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
38
Section 7.02. Rights of Trustee.
------------------
Except as provided in Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person or Persons. 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 of the Company or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith and in
reliance on such Officers' Certificate or Certificates or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) 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.
(e) Any demand, request, direction or notice from the Company mentioned
herein shall, unless otherwise specifically provided, be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(f) 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.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine, to
the extent necessary and consistent with each inquiry or investigation, the
books, records and premises of the Company, personally or by agent or attorney.
Section 7.03. Individual Rights of Trustee.
-----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, must
comply with Sections 7.10 and 7.11.
39
Section 7.04. Trustee's Disclaimer.
---------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the Company's
use of the Securities or the proceeds from the Securities; and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
-------------------
If a Default occurs and is continuing with respect to Securities and if
it is known to the Trustee, the Trustee shall give to each Holder of Securities
of any series to which such Default relates, in the manner and to the extent
provided in TIA Section 313(c), and otherwise as provided in Section 13.02 of
this Indenture, notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest or Additional
Amounts, if any, on a Security of any series, or in the payment of any sinking
or purchase fund installment, the Trustee may withhold the notice if and so long
as the board of directors of the Trustee, the executive committee or a trust
committee of directors and/or of responsible officers, which may include Trust
Officers, of the Trustee in good faith determines that withholding the notice is
in the interests of Holders of Securities of such series or the coupon
appertaining thereto.
Section 7.06. 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 a
brief report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b)(2). Reports to Holders
pursuant to this Section 7.06 shall be transmitted in the manner and to the
extent provided in TIA Section 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities are
listed.
The Company agrees to notify the Trustee whenever the Securities of any
series become listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
---------------------------
The Company shall pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing 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). The Company shall reimburse the Trustee and any predecessor
Trustee upon request for all reasonable out-of-pocket expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee's agents and counsel. The Company shall indemnify
each of the Trustee and any predecessor Trustee against any loss damage claim,
expense or liability (including legal fees and expenses) incurred by it in
connection with the acceptance and administration of the trust and the
performance of its duties hereunder, including the costs and expenses and
disbursements of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any
40
claim asserted against it for which it may seek indemnity; provided, however,
that the failure to give the Company any notice of any claim shall not in any
way affect the rights of the Trustee hereunder to indemnification for such
claim. The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee or any predecessor Trustee to the extent
due to its own negligence, willful misconduct or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of or
interest or Additional Amounts, if any, on the Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (e) and (f) occurs, the expenses and the
compensation for services are intended to constitute expenses of administration
under any Bankruptcy Law. The term "Bankruptcy Law" means Title 11, U.S. Code.
The provisions of this Section 7.07 shall survive termination of this
Indenture or the resignation and removal of the Trustee.
Section 7.08. Replacement of Trustee.
-----------------------
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Outstanding Securities may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee with
respect to the Securities. The Company may by or pursuant to a Board Resolution
remove the Trustee with respect to all Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As soon as possible
after that, the retiring Trustee shall, upon payment of its charges, transfer
all property held by it as Trustee to the successor Trustee, 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. A successor Trustee shall give notice of its succession to each
Holder of Securities.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
41
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Section 7.09. Successor Trustee by Merger, etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
------------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have a combined capital
and surplus of at least $5,000,000 as set forth in its most recent published
annual report of condition. If any series of Securities is admitted to trading
on the New York Stock Exchange, Inc., or any successor thereto, the Trustee
shall maintain an office or agency in The Borough of Manhattan, The City of New
York, New York as long as such series of Securities shall be so admitted. The
Trustee shall comply with TIA Section 310(b).
Section 7.11. Preferential Collection of Claims against Company.
--------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Termination of the Company's Obligations.
-----------------------------------------
The Company may terminate all of its obligations under the Securities
of any series and this Indenture with respect to such series if all Securities
of such series previously authenticated and delivered (other than destroyed,
lost or stolen Securities of such series which have been replaced or paid) and
all coupons appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as provided in
Section 2.06, (ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.07, and
(iii) Securities and coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 4.03
or 8.04) have been delivered to the Trustee for cancellation or if:
(1) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption;
42
(2) the Company irrevocably deposits in trust with the Trustee
money or Government Obligations sufficient to pay principal of and any
interest and Additional Amounts on the Securities of such series to
maturity or redemption, as the case may be (other than moneys paid to
the Company or discharged from trust in accordance with Section 4.03
or 8.04); and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
The Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
7.07, 7.08, and 8.03 with respect to the Securities of such series, however,
shall survive so long as any principal of, interest, if any, or any Additional
Amounts on the Securities of such series, and coupons appertaining thereto,
remains unpaid. Thereafter the Company's obligations in Section 7.07
shall survive.
After a deposit of such moneys, and delivery of the Officers'
Certificate and Opinion of Counsel required by clause (3) above, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture with respect
to the Securities of such series except for those surviving obligations
specified above.
Section 8.02. Termination of the Company's Obligations under Certain
Circumstances.
------------------------------------------------------
Unless otherwise provided in a Board Resolution of the Company
delivered to the Trustee pursuant to Section 2.01 or an indenture supplemental
hereto with respect to the Securities of any series, the Company, at its option,
either (a) shall be deemed to have been Discharged (as defined below) from its
obligations with respect to the Securities of any series, and coupons
appertaining thereto, on the ninety-first day after the applicable conditions
set forth below have been satisfied or (b) shall cease to be under any
obligation to comply with any term, provision or condition set forth in Sections
4.04, 4.05, 4.06 and 4.07 and Sections 6.01 and 6.02 as they relate to Section
6.01(d), with respect to the Securities of any series and any coupons
appertaining thereto and any other covenants provided in the Board Resolution of
the Company (except Section 7.07) delivered to the Trustee pursuant to Section
2.01 or an indenture supplemental hereto with respect to the Securities of such
series and any coupons appertaining thereto at any time after the applicable
conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and any coupons appertaining
thereto (A) money in an amount, or (B) Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day (or,
if such day is a Legal Holiday, the first day preceding such day which
is not a Legal Holiday)
43
before the due date of any payment, money in an amount, or (C) a
combination of (A) and (B), sufficient, in the opinion of a recognized
firm of Independent Public Accountants selected by the Company
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including
mandatory sinking fund payments) of, and interest, if any, and
Additional Amounts, if any, on the Outstanding Securities of such
series on the dates such installments of principal, interest, if any,
and Additional Amounts, if any, are due (taking into account any
redemption pursuant to optional sinking fund payments notice of which
redemption is provided to the Trustee at the time of the deposit
referred to in this paragraph (1));
(2) if the Securities of such series are then listed on the New
York Stock Exchange, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Company's exercise of its
option under this paragraph would not cause such Securities to be
delisted;
(3) no Event of Default, or event which with the giving of notice
or lapse of time, or both, would become an Event of Default, with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit and the Company shall have
furnished to the Trustee an Officers' Certificate to such effect; and
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for United States Federal
income tax purposes as a result of the exercise of the option under
this Section 8.02 and will be subject to United States Federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, and,
in the case of Securities being Discharged, such opinion shall be
accompanied by a private letter ruling to that effect received from
the United States Internal Revenue Service or a revenue ruling
pertaining to a comparable form of transaction to that effect
published by the United States Internal Revenue Service.
"Discharged" means, for purposes of this Section 8.02, that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by, and obligations under, the Securities of any series and to have satisfied
all the obligations under this Indenture relating to the Securities of such
series (and the Trustee, at the expense of the Company, shall execute such
instruments as may be requested by the Company acknowledging the same), except
(A) the rights of Holders of Securities of such series or the coupons, if any,
appertaining thereto, as the case may be, to receive, solely from the trust fund
described above, payment of the principal of and interest, if any, and
Additional Amounts, if any, on such Securities when such payments are due; (B)
the Company's obligations with respect to such Securities under Sections 2.03,
2.04, 2.05, 2.06, 2.07, 7.07, 7.08 and 8.03; and (C) the rights, powers, duties
and immunities of the Trustee hereunder. Notwithstanding the satisfaction and
discharge of this Indenture with respect
44
to any series of Securities, the obligations of the Company to the Trustee and
any predecessor Trustee under Section 7.07 shall survive.
Section 8.03. Application of Trust Money.
---------------------------
All moneys and Government Obligations deposited with the Trustee
pursuant to Sections 8.01 and 8.02 and, with respect to Government Obligations,
the principal and interest in respect thereof, with respect to Securities of any
series shall be held irrevocably in trust and applied by it to the payment in
accordance with the provisions of the Securities of such series and this
Indenture, either directly or through any Paying Agent for the Securities of
that series (including the Company if acting as its own Paying Agent), to the
Holders of the Securities of such series or the coupons, if any, appertaining
thereto, as the case may be, for the payment or redemption of which such money
has been deposited with the Trustee, of all sums due and to become due thereon
for principal, interest, if any, and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Section 8.04. Repayment to Company.
---------------------
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time under this
Article Eight. Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, under this Article Eight in trust for the payment of the
principal of, interest or Additional Amounts, if any, on any Security and
remaining unclaimed for two years after such principal, interest or Additional
Amounts have become due and payable shall be paid to the Company on request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
Section 8.05. Indemnity for Government Obligations.
-------------------------------------
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited Government
Obligations or the principal and interest received on such Government
Obligations.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
---------------------------
The Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities without notice to or
consent of any Securityholder:
(a) to convey, transfer, assign, mortgage or pledge to the trustee as
security for the Securities of one or more series any property or assets;
45
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
Five;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities or coupons
appertaining thereto, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for immediate enforcement
upon such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to waive
such an Event of Default.
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Board of Directors may deem
necessary or desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities or coupons appertaining thereto;
(e) to establish the form or terms of Securities of any series or of
the coupons appertaining to such Securities as permitted by Section 2.01;
(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;
(g) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions (including restrictions relating to payment in the
United States) on the payment of principal of any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance of
Securities in uncertificated form, provided that any such actions shall not
adversely affect the interest of the Holders of the Securities of any series or
any related coupons in any material respect; or
(h) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more series
of Securities), provided that any such addition, change or elimination shall
neither (A) apply to any Security or any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to such
provision.
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 which may
46
be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.09 With Consent of Holders.
------------------------
With the consent of the Holders of not less than a majority of the
principal amount of the Securities at the time Outstanding in each series
affected by such supplemental indenture (voting as one class), the Company, when
authorized by a resolution of its Board of Directors, and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the coupons appertaining to such
Securities; provided, that no such supplemental indenture shall, without the
consent of each Securityholder affected:
(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver or reduce the requirements of
Section 11.09 establishing a quorum or voting or amend this Section
9.02;
(2) reduce the rate or rates of or extend the time for payment of
interest or Additional Amounts, if any, on any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) modify or effect in any manner adverse to the Holders of
Securities the terms and conditions of the obligations of the Company
in respect of its obligations hereunder;
(5) waive a default in the payment of the principal of or
interest or Additional Amounts, if any, on any Security;
(6) impair the right to institute suit for the enforcement of any
payment on or with respect to any series of Securities;
(7) change a Place of Payment; or
(8) make any Security payable in currency other than that stated
in the Security.
47
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the coupons appertaining to Securities of such other
series.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give a notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security Register, (ii) if any Bearer Securities of a series affected thereby
are then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee, by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Bearer Securities of a series affected thereby are then Outstanding, to all
Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Place of Payment, and in each case such notice shall
set forth in general terms the substance of such supplemental indenture. Any
failure the Trustee to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 9.03. Compliance with Trust Indenture Act.
------------------------------------
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
----------------------------------
A consent to an amendment, supplement or waiver to any other action
hereunder by a Holder of a Security of any series shall bind the Holder and
every subsequent Holder of a Security or portion of a Security of that series
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Any such Holder or
subsequent Holder, however, may revoke the consent as to his Security or portion
of a Security. Such revocation shall be effective only if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver or
other action becomes effective.
After an amendment, supplement or waiver with respect to a series of
Securities becomes effective, it shall bind every Holder of Securities of that
series.
Section 9.05. Notation on or Exchange of Securities.
--------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may request the Holder of the Security to deliver it to the Trustee.
The Trustee may then place an appropriate notation on the Security about the
changed terms and return it to the Holder.
48
Alternatively, if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Section 9.06 Trustee to Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article if the amendment or supplement does not adversely affect the
rights, duties, liabilities (present or potential), or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment or supplement, the Trustee shall be entitled to receive and (subject
to Sections 7.01 and 7.02) shall be fully protected in relying upon an Opinion
of Counsel stating that such amendment or supplement is authorized or permitted
by this Indenture.
ARTICLE TEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 10.01. Applicability of Article.
-------------------------
Securities of any series which are repayable at the option of the
Holders thereof before their 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 maturity 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. Notwithstanding anything to
the contrary contained in this Article Ten, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Company on repayment of such Securities, and the obligation
of the Company to pay the repayment price of such Securities shall be satisfied
and discharged to the extent such payment is so paid by such purchasers.
ARTICLE ELEVEN
CONCERNING THE SECURITYHOLDERS
Section 11.01. Evidence of Action Taken by Securityholders.
--------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Securityholders in person or by
agent duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance with the
provisions of Sections 11.06 through 11.11, or a combination of such instruments
such record. Except as herein otherwise
49
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, be sufficient for any purpose of this Indenture and
(subject to Section 7.02) conclusive in favor of the Trustee and the Company, if
made in the manner provided in Section 11.02. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 11.11.
Section 11.02. Proof of Execution of Instruments and of Holding of
Securities.
---------------------------------------------------
The execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgements of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same. The fact of the holding by any Holder of a Bearer Security of any series,
and the identifying number of such Security and the date of his holding the
same, may be proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in
such certificate. Any such certificate may be issued in respect of one or more
Bearer Securities of one or more series specified therein. The holding by the
person named in any such certificate of any Bearer Security or Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect of
the same Security or Securities shall be produced, or (2) the Security or
Securities of such series specified in such certificate shall be produced by
some other person, or (3) the Security or Securities of such series specified in
such certificate shall have ceased to be Outstanding. Subject to Section 7.02,
the fact and date of the execution of any such instrument and the amount and
numbers of Securities of any series held by the person so executing such
instrument and the amount and numbers of any Security or Securities for such
series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in any other
manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of the
Security Registrar.
50
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to an Officers' Certificate delivered to the
Trustee, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Outstanding Securities or Outstanding Securities of a
series, as the case may be, have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities or Outstanding Securities of the
series, as the case may be, shall be computed as of such record date.
Section 11.03. 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, subject to the provisions of
this Indenture, interest on and any Additional Amounts payable in respect of
such Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The Company, the Trustee and any agent of the Company or
the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Bearer Security or coupon (whether or not
such Bearer Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Security or coupon.
None of the Company, the Trustee or any paying agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
51
Section 11.04. 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 which are owned by
the Company or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Company or any such
obligor shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Company
to be owned or held by or for the account of any of the above-described persons;
and, subject to Section 7.02, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of such determination.
Section 11.05. Right of Revocation of Action Taken.
------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 11.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action,
any Holder of a Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued
in exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the Holders of all the Securities
affected by such action.
Section 11.06. Meetings of Holders.
--------------------
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Section 11.06 to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
52
Section 11.07. Call, Notice and Place of Meetings.
-----------------------------------
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 11.06, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, or in
[Boston, Massachusetts] as the Trustee shall determine or, with the approval of
the Company, at any other place. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 13.02 not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.06, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in the Borough of Manhattan, The
City of New York, the City of Boston, Massachusetts, or in such other place as
shall be determined and approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
Section 11.08. Persons Entitled to Vote at Meetings.
-------------------------------------
To be entitled to vote at any meeting of Holders of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities or any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 11.09. Quorum; Action.
---------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 11.07(a), except that
any such notice by publication need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned
53
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Section 11.10. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
-------------------------------------------------------
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holdings
of Securities shall be proved in the manner specified in Section 11.02 and the
appointment of any proxy shall be provided in the manner specified in Section
11.02 or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 11.02 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 11.02 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 11.07(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect to any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of Securities of such series or proxy.
54
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.07 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 11.11. Counting Votes and Recording Action of Meetings.
------------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 11.07 and, if applicable, Section 11.09.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.
-------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is referred to in this Article Twelve as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of such series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.02. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other
55
than any of such Securities previously called for redemption or any of such
Securities in respect of which cash shall have been released to the Company),
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto, and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant
to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.02, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
request, and such cash payment shall be held by the Trustee or a Paying Agent
for Securities of that series and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 12.03. Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.05 and 3.06.
56
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
-----------------------------
If any provision of this Indenture limits, qualifies, or conflicts with
the duties which are required to be included in this Indenture by the TIA
Section 310 to 317, inclusive, such duties set forth in the TIA shall control.
Section 13.02. Notices.
--------
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, any notice or communication shall be sufficiently given if in writing
and delivered in Person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Liberty Financial Companies, Inc.
600 Atlantic Avenue, 24th Floor
Boston, Massachusetts 02210-2214
Attention: Treasurer
with a copy to:
Choute, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109-2891
Attention: P. William Gelnaw, Jr., Esq.
if to the Trustee:
[!]
[address]
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of a Registered Security
shall be mailed to him by first class mail at his address as it appears on the
Security Register and shall be sufficiently given to him if so mailed within the
time prescribed. Failure to mail a notice or communication to a Holder of any
Registered Security or any defect in it shall not affect its
57
sufficiency with respect to other Securityholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
In case, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Any notice required or permitted to be given to a Holder of Bearer
Securities of any series shall be deemed to be properly given if such notice is
published in an Authorized Newspaper on two separate days within the time
prescribed.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 of Securities 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.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 13.03. Communication by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture (except that, in the case of any request or
application as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular request
or application, no additional certificate or opinion need be furnished), the
Company shall furnish to the Trustee:
58
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion.
----------------------------------------------
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 13.06. When Treasury Securities Disregarded.
-------------------------------------
In determining whether the Holders of the required principal amount of
Securities or a series thereof have concurred in any direction, waiver or
consent, Securities owned by the Company or any other obligor upon the
Securities or by any Affiliate of the Company or such obligor shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any Affiliate of the
Company or such obligor.
Section 13.07. Legal Holidays.
---------------
A "Legal Holiday", except as otherwise provided in the form of Security
of any particular series pursuant to the provisions of this Indenture, with
respect to any Place of Payment means a Saturday, a Sunday or a day on which
banking institutions or trust companies in that Place of Payment are not
required to be open. Except as provided otherwise in the applicable Security, if
a payment date with respect to such payment is a Legal Holiday at any Place of
Payment,
59
payment due on such Security with respect to such Security may be made at such
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue with respect to such payment for the intervening period.
Section 13.08. Governing Law.
--------------
The laws of the State of New York applicable to contracts made and
performed in said state shall govern this Indenture and the Securities and
coupons, without regard to choice of law principles. Unless the form of Security
provides otherwise, all money or dollar amounts expressed herein or in the
Securities refer to United States dollars.
Section 13.09. No Adverse Interpretation of Other Agreements.
----------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 13.10. Successors.
-----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor and assigns, whether so expressed or not. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 13.11. Duplicate Originals.
--------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.12. Securities in Foreign Currencies.
---------------------------------
Wherever this Indenture provides for any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or any
distribution to Holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series, any amount in respect
of any Security denominated in a currency other than United States dollars shall
be treated for any such action, determination or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of such date as the Company may specify in a written
notice to the Trustee, or in the absence of such notice, as the Trustee may
determine.
60
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SIGNATURES
LIBERTY FINANCIAL COMPANIES, INC.
Dated: as of __________ By: ___________________________
Name:
Title:
[!],
AS TRUSTEE
By: ___________________________
Name:
Title:
Attest:
Title: (SEAL)
Dated: as of