EXHIBIT 4.2
REXAHN PHARMACEUTICALS,
INC.
ISSUER
AND
TRUSTEE
INDENTURE
DATED AS OF [ ], [
]
SENIOR DEBT
SECURITIES
CROSS-REFERENCE TABLE
1
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Section of
Trust Indenture Act of 1939, as Amended
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Indenture
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310(a)
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7.10
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310(b)
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7.09;
7.11
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310(c)
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Inapplicable
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311(a)
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7.14
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311(b)
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7.14
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311(c)
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Inapplicable
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312(a)
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5.02(a)
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312(b)
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5.02(c)
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312(c)
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Inapplicable
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(a);
5.04(b)
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313(d)
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5.04(c)
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314(a)
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5.03;
4.06
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314(b)
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Inapplicable
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314(c)
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13.07
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314(d)
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Inapplicable
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314(e)
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13.07
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314(f)
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Inapplicable
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315(a)
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7.01(a);
7.03
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315(b)
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7.02
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315(c)
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7.01
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315(d)
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7.01(b)
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315(e)
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6.07;
7.07
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316(a)
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6.06;
8.04
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316(b)
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6.04
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316(c)
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8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.09
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This
Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its
terms or provisions
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TABLE OF CONTENTS
2
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Page
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1
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1
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1
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ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
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5
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DESIGNATION AND TERMS OF SECURITIES.
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5
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FORM OF SECURITIES AND TRUSTEE’S
CERTIFICATE.
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7
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DENOMINATIONS: PROVISIONS FOR
PAYMENT.
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8
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EXECUTION AND AUTHENTICATION.
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9
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REGISTRATION OF TRANSFER AND
EXCHANGE.
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10
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11
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MUTILATED, DESTROYED, LOST OR STOLEN
SECURITIES.
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11
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12
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12
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12
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13
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REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
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15
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15
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15
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16
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17
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Note: This
Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
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17
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REDEMPTION OF SECURITIES FOR SINKING
FUND.
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17
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18
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PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST.
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18
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MAINTENANCE OF OFFICE OR AGENCY.
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18
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18
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APPOINTMENT TO FILL VACANCY IN OFFICE OF
TRUSTEE.
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19
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COMPLIANCE WITH CONSOLIDATION
PROVISIONS.
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19
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STATEMENT BY OFFICERS AS TO DEFAULT.
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20
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SECURITYHOLDERS’ LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
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20
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COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF SECURITYHOLDERS.
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20
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PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS.
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20
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21
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21
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
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22
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22
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COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
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24
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APPLICATION OF MONEYS COLLECTED.
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25
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25
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RIGHTS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER.
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26
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CONTROL BY SECURITYHOLDERS.
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27
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UNDERTAKING TO PAY COSTS.
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27
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28
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CERTAIN DUTIES AND RESPONSIBILITIES OF
TRUSTEE.
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28
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29
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CERTAIN RIGHTS OF TRUSTEE.
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29
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TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OR SECURITIES.
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31
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31
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31
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COMPENSATION AND REIMBURSEMENT.
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31
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RELIANCE ON OFFICERS’
CERTIFICATE.
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32
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DISQUALIFICATION; CONFLICTING
INTERESTS.
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32
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CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY.
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33
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RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
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33
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ACCEPTANCE OF APPOINTMENT BY
SUCCESSOR.
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34
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MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
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36
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PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.
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36
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CONCERNING THE SECURITYHOLDERS
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36
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EVIDENCE OF ACTION BY
SECURITYHOLDERS.
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36
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PROOF OF EXECUTION BY
SECURITYHOLDERS.
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37
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WHO MAY BE DEEMED OWNERS.
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37
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CERTAIN SECURITIES OWNED BY COMPANY
DISREGARDED.
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37
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ACTIONS BINDING ON FUTURE
SECURITYHOLDERS.
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38
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38
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SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
SECURITYHOLDERS.
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38
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SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS.
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39
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EFFECT OF SUPPLEMENTAL INDENTURES.
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40
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SECURITIES AFFECTED BY SUPPLEMENTAL
INDENTURES.
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40
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EXECUTION OF SUPPLEMENTAL INDENTURES.
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41
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41
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COMPANY MAY CONSOLIDATE, ETC.
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41
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SUCCESSOR ENTITY SUBSTITUTED.
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42
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EVIDENCE OF CONSOLIDATION, ETC. TO
TRUSTEE.
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42
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SATISFACTION AND DISCHARGE;
DEFEASANCE
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42
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SATISFACTION AND DISCHARGE.
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42
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43
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DEPOSITED MONEYS TO BE HELD IN TRUST.
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45
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PAYMENT OF MONEYS HELD BY PAYING
AGENTS.
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45
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45
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
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45
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45
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46
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EFFECT ON SUCCESSORS AND ASSIGNS.
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46
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46
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SURRENDER OF COMPANY POWERS.
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46
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46
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GOVERNING LAW; WAIVER OF TRIAL BY
JURY.
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46
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TREATMENT OF SECURITIES AS DEBT.
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47
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COMPLIANCE CERTIFICATES AND OPINIONS.
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47
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PAYMENTS ON BUSINESS DAYS.
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47
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CONFLICT WITH TRUST INDENTURE ACT.
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48
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48
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48
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48
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INDENTURE,
dated as of [ ], [ ], between Rexahn Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and
[_____________], a [______________], as trustee (the
“Trustee”):
RECITALS OF THE
COMPANY
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of unsecured debt securities
(hereinafter referred to as the “Securities”), in an
unlimited aggregate principal amount to be issued from time to time
in one or more series as provided in this Indenture, as registered
Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, in consideration of the premises
and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed as follows for the equal and ratable
benefit of the Holders of Securities or of series
thereof.
ARTICLE I
DEFINITIONS
SECTION
1.01 DEFINITIONS OF TERMS.
The terms defined in this Section (except as in
this Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section and shall include the plural as well as
the singular. All other terms used in this Indenture
that are defined in the Trust Indenture Act, or that are by
reference in said Trust Indenture Act defined in the Securities Act
(except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of the execution of this
instrument.
“ARTICLE”, “SECTION” or
other subdivisions refer to Articles, Sections or other
subdivisions of this Indenture.
“AUTHENTICATING AGENT” means an
authenticating agent with respect to all or any of the series of
Securities appointed with respect to all or any series of the
Securities by the Trustee pursuant to Section 2.10.
“BANKRUPTCY LAW” means Title 11,
U.S. Code, or any similar federal or state law for the relief of
debtors.
“BOARD OF DIRECTORS” means the Board
of Directors of the Company or any duly authorized committee of
such Board.
“BOARD RESOLUTION” means a copy of a
resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such
certification.
“BUSINESS DAY” means, with respect
to any series of Securities, any day other than a Saturday or
Sunday, or a day on which federal or state banking institutions in
[________], are authorized or obligated by law, executive order or
regulation to close.
“CERTIFICATE” means a certificate
signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the
Company. The Certificate need not comply with the
provisions of Section 13.07.
“COMMISSION” means the Securities
and Exchange Commission.
“COMPANY” means Rexahn
Pharmaceuticals, Inc., a corporation duly organized and existing
under the laws of the State of Delaware, and, subject to the
provisions of Article X, shall also include its successors and
assigns.
“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
[____________________________].
“COVENANT DEFEASANCE” has the
meaning given in Section 11.02.
“CUSTODIAN” means any receiver,
trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
“DEFAULT” means any event, act or
condition that with notice or lapse of time, or both, would
constitute an Event of Default.
“DEFAULTED INTEREST” has the meaning
given in Section 2.03.
“DEPOSITARY” means, with respect to
Securities of any series, for which the Company shall determine
that such Securities will be issued as a Global Security,
[_________], another clearing agency, or any successor registered
as a clearing agency under the Exchange Act, or other applicable
statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
“EVENT OF DEFAULT” means, with
respect to Securities of a particular series any event specified in
Section 6.01, continued for the period of time, if any, therein
designated.
“EXCHANGE ACT” means the Securities
Exchange Act of 1934, as amended, or any successor statute or
statutes thereto.
“GLOBAL SECURITY” means, with
respect to any series of Securities, a Security executed by the
Company and delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary
or its nominee.
“GOVERNMENTAL OBLIGATIONS” means
securities that are (i) direct obligations of the United States of
America for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America
that, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any such Governmental Obligation
or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of
the Holder of such depositary receipt; provided, however, 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 Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
“HEREIN”, “HEREOF” and
“HEREUNDER”, and other words of similar import, refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“INCLUDING”, unless the context
requires otherwise, means including without limitation.
“INDENTURE” means this instrument as
originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof, including, for all
purposes of this instrument and any such supplemental indenture,
the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental
indenture, respectively. The term
“Indenture” shall also include the terms of particular
series of Securities established as contemplated by Section
2.01.
“INTEREST PAYMENT DATE”, when used
with respect to any installment of interest on a Security of a
particular series, means the date specified in such Security or in
a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of
interest with respect to Securities of that series is due and
payable.
“LEGAL DEFEASANCE” has the meaning
given in Section 11.02.
“OFFICERS’ CERTIFICATE” means
a certificate signed by the President or a Vice President and by
the Treasurer or an Assistant Treasurer or the Controller or an
Assistant Controller or the Secretary or an Assistant Secretary of
the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such certificate shall include the
statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.
“OPINION OF COUNSEL” means an
opinion in writing of legal counsel acceptable to the Trustee, who
may be an employee of or counsel for the Company that is delivered
to the Trustee in accordance with the terms hereof. Each
such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions
thereof.
“ORIGINAL ISSUE DISCOUNT SECURITY”
means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section
6.01.
“OUTSTANDING”, when used with
reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or
delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article III;
or provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Securities in lieu of or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.07;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date,
the principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date
upon acceleration of the maturity thereof to such date pursuant to
Section 6.01.
“PERSON” means any individual,
corporation, limited liability company, partnership, joint-venture,
joint-stock company, unincorporated organization or government or
any agency or political subdivision thereof.
“PREDECESSOR SECURITY” of any
particular Security means every previous Security evidencing all or
a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.
“RESPONSIBLE OFFICER”, when used
with respect to the Trustee, means any officer assigned to the
[______________] [Division / Unit] (or any successor division or
unit) of the Trustee located at the Corporate Trust Office of the
Trustee, who shall have direct responsibility for the
administration of this Indenture, and for the purposes of Section
7.01(b)(ii) and Section 315(b) of the Trust Indenture Act shall
also include any other officer of the Trustee to whom any corporate
trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
“SECURITIES” means the debt
securities authenticated and delivered under this
Indenture.
“SECURITIES ACT” means the
Securities Act of 1933, as amended, or any successor statute or
statutes thereto.
“SECURITYHOLDER”, “HOLDER of
SECURITIES”, “REGISTERED HOLDER”,
“HOLDER”, or other similar term, means the Person or
Persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in
accordance with the terms of this Indenture.
“SECURITY REGISTER” has the meaning
given in Section 2.05.
“SECURITY REGISTRAR” has the meaning
given in Section 2.05.
“SUBSIDIARY” means, with respect to
any Person, (i) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any
general partnership, limited liability company, joint venture or
similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a
general partner.
“TRUSTEE” means [_______________]
and, subject to the provisions of Article VII, shall also include
its successors and assigns, and, if at any time there is more than
one Person acting in such capacity hereunder, “Trustee”
shall mean each such Person. The term
“Trustee” as used with respect to a particular series
of the Securities shall mean the trustee with respect to that
series.
“TRUST INDENTURE ACT” means the
Trust Indenture Act of 1939, as amended, subject to the provisions
of Sections 9.01, 9.02, and 10.01, as in effect at the date of
execution of this instrument.
“VOTING STOCK”, as applied to stock
of any Person, means shares, interests, participations or other
equivalents in the equity interest (however designated) in such
Person having ordinary voting power for the election of a majority
of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS,
EXECUTION,
REGISTRATION AND EXCHANGE OF
SECURITIES
SECTION
2.01 DESIGNATION AND TERMS OF SECURITIES.
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 up to the aggregate principal amount, if any, of Securities
of that series from time to time authorized by or pursuant to a
Board Resolution or pursuant to one or more indentures supplemental
hereto. Prior to the initial issuance of Securities of
any series, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental
hereto:
(1)
the title of the Security of the series (which shall
distinguish the Securities of the series from all other
Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that
series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);
(3) the
date or dates on which the principal of the Securities of the
series is payable and the place(s) of payment;
(4) the
rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if
any;
(5) the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of
payment, and the record date or other method for the determination
of Holders to whom interest is payable on any such Interest Payment
Dates;
(6) the
right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the
period or periods within which, the price or prices at which and
the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the
Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking
fund obligations) or at the option of a Holder thereof and the
period or periods within which, the price or prices at which, and
the terms and conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the
form of the Securities of the series, including the form of the
Trustee’s certificate of authentication for such
series;
(10) if
other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11) any
and all other terms with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture);
(12) whether
the Securities of the series are issuable as a Global Security and,
in such case, the identity of the Depositary for such series and
any other or different terms in respect of such Global
Security;
(13) whether
the Securities of the series will be convertible into shares of
common stock or other securities of the Company and, if so, the
terms and conditions upon which such Securities will be so
convertible, including the conversion price and the conversion
period;
(14) if
other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant
to Section 6.01;
(15) any
additional or different Events of Default or restrictive covenants
provided for with respect to the Securities of the
series;
(16) if
applicable, that the Securities of the series, in whole or in
specified part, shall be defeasible pursuant to Section 11.02 and,
if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be
evidenced; and
(17) if
other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or
any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including
for purposes of the definition of “Outstanding” in
Section 1.01. All Securities of any one series shall be
substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto. If any of the
terms of the series are established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth the terms
of the series. Securities of any particular series may
be issued at various times, with different dates on which the
principal or any installment of principal is payable, with
different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which
such interest may be payable and with different redemption
dates. Notwithstanding Section 2.01(2) and unless
otherwise expressly provided with respect to a series of
Securities, the aggregate principal amount of a series of
Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount
authorized with respect to such series as increased.
SECTION
2.02 FORM OF SECURITIES AND TRUSTEE’S
CERTIFICATE.
The Securities of any series and the
Trustee’s certificate of authentication to be borne by such
Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided
in or pursuant to a Board Resolution and as set forth in an
Officers’ Certificate. The Securities may have
such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock
exchange on which Securities of that series may be listed, or to
conform to usage.
SECTION
2.03 DENOMINATIONS: PROVISIONS FOR
PAYMENT.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, subject to Section
2.01(10). The Securities of a particular series shall
bear interest payable on the dates and at the rates specified or
provided for with respect to that series. Except as
contemplated by Section 2.01(17), the principal of and the interest
on the Securities of any series, as well as any premium thereon in
case of redemption thereof prior to maturity, shall be payable in
the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in
[________________]; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear
in the Security Register. Each Security shall be
dated the date of its authentication by the
Trustee. Except as contemplated by Section 2.01(4),
interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months. Except as
contemplated by Section 2.01(5), the interest installment on any
Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or
more Predecessor Securities) is registered at the close of business
on the regular record date for such interest
installment. In the event that any Security of a
particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section
3.03. Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered Holder on the relevant regular record date by virtue of
having been such Holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at his or her address as it appears
in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the
Trustee. Unless otherwise set forth in a Board
Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to
Section 2.01 hereof, the term “regular record date” as
used in this Section with respect to a series of Securities with
respect to any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of
a month, whether or not such date is a Business
Day. Subject to the foregoing provisions of this
Section, each Security of a series delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other
Security.
SECTION
2.04 EXECUTION AND AUTHENTICATION.
The Securities shall be signed on behalf of the
Company by its President, or one of its Vice Presidents, or its
Treasurer, or one of its Assistant Treasurers, attested by its
Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual
or facsimile signature. The Company may use the
facsimile signature of any Person who shall have been a President
or Vice President thereof, or of any Person who shall have been the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be the President or a Vice President,
or the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company. The Securities may
contain such notations, legends or endorsements required by law,
stock exchange rule or usage. A Security shall not be
valid until authenticated manually by an authorized signatory of
the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence and the only evidence that
the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits
of this Indenture. At any time and from time to time
after the execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Securities,
signed by its President or any Vice President and its Secretary or
any Assistant Secretary, and the Trustee in accordance with such
written order shall authenticate and deliver such
Securities. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions of
this Indenture and that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to any
Bankruptcy Law or other insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles and to other customary
exceptions. The Trustee shall not be required to
authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
SECTION
2.05 REGISTRATION OF TRANSFER AND
EXCHANGE.
(a) Securities
of any series may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose in
[____________], for other Securities of such series of authorized
denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder
making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in [_____________], or such other
location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by
Board Resolution (the “Security
Registrar”). Upon surrender for transfer of any
Security at the office or agency of the Company designated for such
purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same
series as the Security presented for a like aggregate principal
amount. All Securities presented or surrendered for
exchange or registration of transfer, as provided in this Section,
shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly
executed by the registered Holder or by such Holder’s duly
authorized attorney in writing.
(c) No
service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to
Section 2.06, Section 3.03(b) and Section 9.04 not involving any
transfer. The Company shall not be required (i) to
issue, exchange or register the transfer of any Securities during a
period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of less than all the
Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the
transfer of or exchange any Securities of any series or portions
thereof called for redemption. The provisions of this
Section 2.05 are, with respect to any Global Security, subject to
Section 2.11 hereof.
SECTION
2.06 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of
which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every temporary
Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange
therefor (without charge to the Holders), at the office or agency
of the Company designated for the purpose in [______________], and
the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the
temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION
2.07 MUTILATED, DESTROYED, LOST OR STOLEN
SECURITIES.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
the Company’s request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of
the applicant’s Security and of the ownership
thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request
or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for
such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Security and of the ownership
thereof. Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional
contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or
be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued
hereunder. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent
lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION
2.08 CANCELLATION.
All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall
be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the
Company canceled Securities held by the Trustee. In the
absence of such request the Trustee may dispose of canceled
Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION
2.09 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the Holders of the
Securities any legal or equitable right, remedy or claim under or
in respect of this Indenture, or under any covenant, condition or
provision herein contained; all such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of
the Holders of the Securities.
SECTION
2.10 AUTHENTICATING AGENT.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or
all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial
redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such
series. Each Authenticating Agent shall be acceptable to
the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is
organized or in which it is doing business to conduct a trust
business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination
by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately. Any
Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto. Any corporation
into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating
Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating
Agent.
SECTION
2.11 GLOBAL SECURITIES.
(a) If
the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global
Security that
(1) shall
represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all or a portion of the Outstanding
Securities of such series,
(2) shall
be registered in the name of the Depositary or its
nominee,
(3) shall
be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, and
(4) shall
bear a legend substantially to the following
effect: “Except as otherwise provided in Section
2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to the Depositary, another nominee of the
Depositary or to a successor Depositary or to a nominee of such
successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may
be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to the Depositary for such series, another
nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a
successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such series
and the Company will execute, and subject to Section 2.05, the
Trustee will authenticate and deliver the Securities of such series
in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may
at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions
of this Section 2.11 shall no longer apply to the Securities of
such series. In such event the Company will execute and
subject to Section 2.05, the Trustee, upon receipt of an
Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the
Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the
Persons in whose names such Securities are so
registered.
(d) None
of the Trustee, the Security Registrar or any paying agent shall
have any responsibility or obligation to any beneficial owner in a
Global Security, a member of, or a participant in the Depositary or
other Person with respect to the accuracy of the records of the
Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount,
under or with respect to such Securities. All notices
and communications to be given to the Securityholders and all
payments to be made to Securityholders under the Securities and
this Indenture shall be given or made only to or upon the order of
the registered holders (which shall be the Depositary or its
nominee in the case of the Global Security). The rights
of beneficial owners in the Global Security shall be exercised only
through the Depositary subject to the applicable
procedures. The Trustee, the Security Registrar and any
paying agent shall be entitled to rely and shall be fully protected
in relying upon information furnished by the Depositary with
respect to its members, participants and any beneficial
owners. The Trustee, the Security Registrar and any
paying agent shall be entitled to deal with any depositary
(including the Depositary), and any nominee thereof, that is the
registered holder of any Global Security for all purposes of this
Indenture relating to such Global Security (including the payment
of principal, premium, if any, and interest and additional amounts,
if any, and the giving of instructions or directions by or to the
owner or holder of a beneficial ownership interest in such Global
Security) as the sole holder of such Global Security and shall have
no obligations to the beneficial owners thereof. None of
the Trustee, the Security Registrar or any paying agent shall have
any responsibility or liability for any acts or omissions of any
such depositary with respect to such Global Security, for the
records of any such depositary, including records in respect of
beneficial ownership interests in respect of any such Global
Security, for any transactions between such depositary and any
participant in such depositary or between or among any such
depositary, any such participant and/or any holder or owner of a
beneficial interest in such Global Security, or for any transfers
of beneficial interests in any such Global Security.
Notwithstanding the foregoing, with respect to
any Global Security, nothing herein shall prevent the Company, the
Trustee, the Security Registrar, any paying agent, or any other
agent of the Company or any agent of the Trustee, from giving
effect to any written certification, proxy or other authorization
furnished by any depositary (including the Depositary), as a
Securityholder, with respect to such Global Security or impair, as
between such depositary and owners of beneficial interests in such
Global Security, the operation of customary practices governing the
exercise of the rights of such depositary (or its nominee) as
Holder of such Global Security.
ARTICLE III
REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
SECTION
3.01 REDEMPTION.
The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section 2.01
hereof.
SECTION
3.02 NOTICE OF REDEMPTION.
(a) In
case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, the Company shall
(upon five Business Days prior notice to the Trustee, unless a
shorter notice period shall be acceptable to the Trustee), or shall
cause the Trustee to, give notice of such redemption to Holders of
the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30
days and not more than 90 days before the date fixed for redemption
of that series to such Holders at their last addresses as they
shall appear upon the Security Register unless a shorter period is
specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
Holder receives the notice. In any case, failure duly to
give such notice to the Holder of any Security of any series
designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the
redemption of any other Securities of such series or any other
series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with any such
restriction. Each such notice of redemption shall
specify the date fixed for redemption and the redemption price at
which Securities of that series are to be redeemed, and shall state
that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in
[_____________], upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption
will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a
sinking fund, if such is the case. If less than all the
Securities of a series are to be redeemed, the notice to the
Holders of Securities of that series to be redeemed in whole or in
part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the
portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be
issued.
(b) If
less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days’ notice in
advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to
one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in
part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by its
President or any Vice President, instruct the Trustee or any paying
agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the
manner set forth in this Section, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent as
it may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be,
such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
SECTION
3.03 PAYMENT UPON REDEMPTION.
(a) If
the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation
and surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption
is an Interest Payment Date, the interest installment payable on
such date shall be payable to the registered Holder at the close of
business on the applicable record date pursuant to Section
2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed
in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is
presented shall deliver to the Holder thereof, at the expense of
the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion
of the Security so presented.
SECTION
3.04 SINKING FUND.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise specified as
contemplated by Section 2.01 for Securities of such
series. The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein
referred to as a “mandatory sinking fund payment,” and
any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided
for by the terms of Securities of any series, the cash amount of
any sinking fund payment may be subject to reduction as provided in
Section 3.05. 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
3.05 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company,
(1) may
deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and
(2) may
apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the
terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION
3.06 REDEMPTION OF SECURITIES FOR SINKING
FUND.
Not less than 45 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 sinking fund payment for that series pursuant
to the terms of the series, the portion thereof, if any, that is to
be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will,
together with such Officers’ Certificate, deliver to the
Trustee any Securities to be so delivered. 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 3.02 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
3.02. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV
COVENANTS
SECTION
4.01 PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST.
The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Securities of each series at the time and place and
in the manner provi
