INDENTUREIndenture Agreement |
|
|
You are currently viewing: This Indenture Agreement involves
STATE BANCORP INC | CEDE & CO | FEDERAL DEPOSIT INSURANCE CORPORATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 4.4 – Form of Indenture for Subordinated Notes
STATE BANCORP, INC.
_____________________
INDENTURE
Dated as of ____________
______________________
_______________________,
as Trustee
_______________________
SUBORDINATED NOTES
Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
NOTES
ARTICLE III
PARTICULAR COVENANTS OF THE CORPORATION
ARTICLE IV
LIST OF NOTEHOLDERS AND REPORTS BY THE CORPORATION AND THE TRUSTEE
ARTICLE V
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS UPON EVENT OF DEFAULT
ARTICLE VI
CONCERNING THE TRUSTEE
ARTICLE VII
CONCERNING THE NOTEHOLDERS
ARTICLE VIII
MEETINGS OF NOTEHOLDERS
ARTICLE IX
SUPPLEMENTAL INDENTURES
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
ARTICLE XI 47
REDEMPTION OF NOTES
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
ARTICLE XIV
MISCELLANEOUS PROVISIONS
ARTICLE XV
SUBORDINATION OF NOTES
EXHIBITS
Cross Reference Table
Showing Reflection of Certain Provisions Required Pursuant to Section 310 through 318(a) of Trust Indenture Act of 1939, as Amended, (Including Cross-References to Provisions of Sections 310 through 318(a) which, Pursuant to Section 318(c) of the Trust Indenture Act of 1939, as Amended, are Part of and Govern Such Provisions of the Indenture Whether or not Physically Contained Therein 1
TIA Section
SECTION 310 (a)(1) ....................................... 6.09 (a)(2) ....................................... 6.09 (a)(3) ....................................... Not Applicable (a)(4) ....................................... Not Applicable (a)(5) ....................................... 6.09 (b) .......................................... 6.08, 6.10(a), (b) and (d) (c) .......................................... Not Applicable
SECTION 311 (a) .......................................... 6.13 (b) .......................................... 6.13 (c) .......................................... Not Applicable
SECTION 312 (a) .......................................... 4.01 4.02 (b) .......................................... 4.02 (c) .......................................... 4.02
SECTION 313 (a) .......................................... 4.04 4.04 (c) .......................................... 4.04 5.11 (d) .......................................... 4.04
SECTION 314(a) (1), (2) and (3) ............................. 4.03 (a) (4) ...................................... 3.05 (b) .......................................... Not Applicable (c)(1) ....................................... 13.06 (c)(2) ....................................... 13.06 (c)(3) ....................................... Not Applicable (d) .......................................... Not Applicable (e) .......................................... 13.06 (f) .......................................... Not Applicable
1 This Table is not a part of the Indenture.
SECTION 315 (a) .......................................... 6.01
(b) .......................................... 6.01 (c) .......................................... 6.01 (d) .......................................... 6.01 (d)(1) ....................................... 6.01 (d)(2) ....................................... 6.01 (d)(3) ....................................... 6.01 (e) .......................................... 5.12
SECTION 316 (a)(1)(A) ....................................... 5.10 (a)(1)(B) .................................... 5.10 (a)(2) ....................................... Not Applicable (a) last sentence ............................ 7.04 (b) .......................................... 5.13
SECTION 317 (a)(1) ....................................... 5.03 (a)(2) ....................................... 5.04 (b) .......................................... 6.05
SECTION 318 (a) .......................................... 13.09
THIS INDENTURE, dated as of __________, between State Bancorp, Inc., a New York corporation (hereinafter called the “ Corporation ”), and ___________, a ___________, as trustee (the “ Trustee ”).
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Notes (as defined below) by the holders thereof, the Corporation covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the Notes or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions . The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act, or which are by reference therein defined in the Securities Act, shall (except as herein otherwise expressly provided or unless the context otherwise requires) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted at the time of any computation. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Headings are used for convenience of reference only and do not affect interpretation. The singular includes the plural and vice versa.
“ Affiliate ” shall have the meaning given to that term in Rule 405 under the Securities Act or any successor rule thereunder.
“ Allocable Amounts ,” when used with respect to any Senior Indebtedness, means all amounts due or to become due on such Senior Indebtedness less, if applicable, any amount which would have been paid to, and retained by, the holders of such Senior Indebtedness (whether as a result of the receipt of payments by the holders of such Senior Indebtedness from the Corporation or any other obligor thereon or from any holders of, or trustee in respect of, other indebtedness that is subordinate and junior in right of payment to such Senior Indebtedness pursuant to any provision of such indebtedness for the payment over of amounts received on account of such indebtedness to the holders of such Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness is subordinate or junior in right of payment to (or subject to a requirement that amounts received on such Senior Indebtedness be paid over to obligees on) trade accounts payable or accrued liabilities arising in the ordinary course of business.
“ Applicable Depositary Procedures ” means, with respect to any transfer or transaction involving a Book-Entry Interest or a Note of any series represented by a Global Note, the rules and procedures of the Depositary for such Book-Entry Interest or Note represented by a Global Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“ Authenticating Agent ” shall mean any agent or agents of the Trustee which at the time shall be appointed and acting pursuant to Section 6.14.
“ Bankruptcy Law ” shall mean Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“ Board of Directors ” shall mean either the Board of Directors of the Corporation or any duly authorized committee of that board.
“ Board Resolution ” shall mean a copy of a resolution certified by the Secretary or an Assistant Secretary of the Corporation to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“ Book-Entry Interest ” shall mean a beneficial interest in a Global Note registered in the name of a Clearing Agency or its nominee, ownership and transfers of which shall be maintained and made through book entries by such Clearing Agency.
“ Business Day ” shall mean, with respect to any series of Notes, any day other than a Saturday, a Sunday, or a day on which banking institutions in The City of New York or _____________, are authorized or required by law, executive order or regulation to close.
“ Clearing Agency ” means an organization registered as a “Clearing Agency” pursuant to Section 17A of the Exchange Act that is acting as depositary for one or more series of the Notes and in whose name or in the name of a nominee of that organization shall be registered a Global Note and which shall undertake to effect book entry transfers and pledges of beneficial interests in such Global Note.
“ Clearing Agency Participant ” means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency.
“ Commission ” shall mean the Securities and Exchange Commission, or any successor agency of the United States government having administrative authority with respect to the federal securities laws.
“ Common Stock ” shall mean the Common Stock, par value $5.00 per share, of the Corporation or any other class of stock resulting from changes or reclassifications of such Common Stock consisting solely of changes in par value, or from par value to no par value, or from no par value to par value.
“ Corporate Trust Office ” shall mean the Principal Office of the Trustee.
“ Corporation ” shall mean the person identified as the “Corporation” in the preamble to this Indenture and, subject to the provisions of Article X, shall also include its successors and assigns.
2
“ Corporation Order ” shall mean a written request or order signed in the name of the Corporation by an Officer and delivered to the Trustee.
“ Custodian ” shall mean any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“ Defeasance Agent ” means another financial institution which is eligible to act as Trustee hereunder and which assumes all of the obligations of the Trustee necessary to enable the Trustee to act hereunder. In the event such a Defeasance Agent is appointed pursuant to Section 12.05 of this Indenture, the following conditions shall apply:
(i) the Trustee shall have approval rights over the document appointing such Defeasance Agent and the document setting forth such Defeasance Agent’s rights and responsibilities; and
(ii) the Defeasance Agent shall provide verification to the Trustee acknowledging receipt of sufficient money and/or U.S. Government Obligations to meet the applicable conditions set forth in Section 12.05.
“ Default ” shall mean any event, act or condition specified in Sections 5.01 or 5.03, continued for the period of time, if any, and after the giving of the notice, if any, therein designated.
“ Defaulted Interest ” has the meaning set forth in Section 2.07(c).
“ Definitive Notes ” means those Notes issued in fully registered certificated form.
“ Depositary ” means, with respect to any series of Notes that the Corporation determines shall be issued as a Global Note, The Depository Trust Company, New York, New York, or another organization registered as a “clearing agency” under the Exchange Act that is designated as Depositary for the Global Note by the Corporation and in whose name or in the name of a nominee of that organization shall be registered a Global Note and which shall undertake to effect book-entry transfers of the Global Note.
“ Depositary Participant ” means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depositary effects book-entry transfers and pledges of securities deposited with or on behalf of the Depositary.
“ Discharged ” means that the Corporation shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Notes of any series and to have satisfied all the obligations under this Indenture relating to the Notes of such series (and the Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging the same), except (i) the rights of holders of such Notes to receive, from the trust fund described in Section 12.05(a), payment of the principal of, premium, if any, and the interest on such Notes when such payments are due; (ii) the Corporation’s obligations with respect to such Notes under Sections 2.09, 2.11, 5.02 and 12.04; and (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
3
“ Dollars ” means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
“ DTC ” shall mean The Depository Trust Company, the initial Clearing Agency.
“ Event of Default ” shall have the meaning specified in Section 5.01.
“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time, or any successor statute.
“ Foreign Currency ” means a currency issued by the government of any country other than the United States.
“ Global Note ” shall mean, with respect to any series of Notes, a Note executed by the Corporation and delivered by the Trustee to the Depository or pursuant to the Depository’s instruction or, if no instructions are received, then held by the Trustee as custodian for the Depository, all in accordance with this Indenture, which Note shall be registered in the name of the Depository or its nominee.
“ Indebtedness ” shall mean, whether or not recourse is to all or a portion of the assets of the Corporation and whether or not contingent, (i) every obligation of the Corporation for money borrowed; (ii) every obligation of the Corporation evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of the Corporation, contingent or otherwise, with respect to letters of credit, bankers’ acceptances, security purchase facilities or similar facilities issued for the account of the Corporation; (iv) every obligation of the Corporation issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); (v) every capital lease obligation of the Corporation; (vi) all indebtedness of the Corporation for claims in respect of derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, the Corporation has guaranteed or is responsible or liable for directly or indirectly, as obligor or otherwise, and (viii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, is secured by a lien on any property or assets of the Corporation.
“ Indenture ” shall mean this instrument as originally executed or, if amended by one or more indentures supplemental hereto as herein provided, as so amended.
“ Interest Payment Date ” shall mean, with respect to any series of Notes, the Stated Maturity of an installment of interest on the Notes of such series, subject to Section 14.07.
“ Interest Period ” shall have the meaning set forth in Section 2.07(b).
“ Interest Rate ” shall have the meaning set forth in Section 2.01.
4
“ Issue Date ” shall have the meaning set forth in Section 2.01.
“ Maturity Date ” shall mean, with respect to any series of Notes, the date on which the principal of such Note becomes due and payable as therein or herein provided.
“ Noteholder ,” “ holder of Notes ,” or other similar terms shall mean any Person in whose name at the time a particular Note of any series is registered in the Note Register kept by the Corporation or the Registrar for that purpose in accordance with the terms of this Indenture.
“ Note Register ” shall mean the list of registered holders of Notes provided to the Trustee pursuant to Section 4.01.
“ Note ” or “ Notes ” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of Indebtedness, as the case may be, authenticated and delivered under this Indenture; provided , however , that, if at any time there is more than one Person acting as Trustee under this Indenture, “Notes”, with respect to any such Person, shall mean Notes authenticated and delivered under this Indenture, exclusive, however, of Notes of any series as to which such Person is not Trustee.
“ Officer ” shall mean any of the Chief Executive Officer, the President, an Executive Vice President, the Chief Financial Officer, or the General Counsel of the Corporation.
“ Officers’ Certificate ” shall mean a certificate signed by two Officers that complies with the requirements of Section 314(c) of the TIA and is delivered to the Trustee.
“ Opinion of Counsel ” shall mean a written opinion of counsel, who may be an employee of the Corporation, and who shall be reasonably acceptable to the Trustee and that, if required by the TIA, complies with the requirements of Section 314(c) of the TIA and is delivered to the Trustee.
“ Outstanding ” when used with reference to any series of Notes, shall mean, as of any particular time, all Notes authenticated and delivered by the Trustee or the Authenticating Agent under this Indenture, except
(a) Notes theretofore canceled by the Trustee or the Authenticating Agent or delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Corporation) or shall have been set aside and segregated in trust by the Corporation (if the Corporation shall act as its own paying agent);
(c) Notes in lieu of or in substitution for which other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.08 unless proof satisfactory to the Corporation and the Trustee is presented that any such Notes are held by bona fide holders in due course; and
(d) Notes held by the Corporation or any Affiliate thereof.
5
“ Paying Agent ” shall have the meaning set forth in Section 3.02.
“ Person ” shall mean any individual, corporation, estate, partnership, joint venture, banking association, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“ Predecessor Note ” of any particular Note shall mean every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.09 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated or destroyed, lost or stolen Note.
“ Principal Office of the Trustee ,” or other similar term, shall mean the office of the Trustee, at which at any particular time its corporate trust business shall be administered.
“ Redemption Date ,” when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“ Redemption Price ,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“ Registrar ” shall have the meaning set forth in Section 3.02.
“ Regular Record Date ” shall mean the 15 th calendar day prior to the applicable Interest Payment Date, whether or not such day is a Business Day.
“ Responsible Officer ” shall mean any officer of the Trustee’s Corporate Capital Markets Division with direct responsibility for the administration of the Indenture and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“ Securities Act ” shall mean the Securities Act of 1933, as amended from time to time, and any successor statute.
“ Senior Indebtedness ” shall mean, with respect to the Notes of a particular series, the principal of (and premium, if any) and interest, if any (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Corporation, whether or not such claim for post petition interest is allowed in such proceedings), on all Indebtedness, whether outstanding on the date of execution of this Indenture, or hereafter created, assumed or incurred, and any deferrals, renewals or extensions of such Indebtedness; provided , however , that Senior Indebtedness shall not include (A) any Indebtedness issued to any statutory trust created by the Corporation for the purpose of issuing trust securities in connection with such issuance of Indebtedness, which shall in all cases be junior to such Notes, including without limitation the debt securities issued to (1) State Bancorp Capital Trust I and (2) State Bancorp Capital Trust II, (B) any guarantees of the Corporation in respect of the equity securities or other securities of any financing entity referred to in clause (A) above, (C) the Corporation’s 8.25% Subordinated Notes due June 15, 2013 (with respect to which the Notes issued hereunder rank pari passu ) or (D) any other subordinated debt of the Corporation that by its terms ranks pari passu or junior to the Notes issued hereunder.
6
“ Stated Maturity ” shall mean with respect to any series of Notes or any installment of principal or interest thereon, the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“ Subsidiary ” shall mean with respect to any Person, (i) any corporation at least a majority of the outstanding voting stock of which is 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, joint venture, limited liability company or similar entity, at least a majority of whose outstanding partnership, membership 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. For the purposes of this definition, “voting stock” 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.
“ Temporary Notes ” shall mean temporary notes as such term is used in Section 2.10 herein.
“ Trustee ” shall mean the Person identified as “Trustee” in the preamble to this Indenture and, subject to the provisions of Article VI hereof, shall also include its successors and assigns, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided , however , that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Notes of any series, shall mean the Trustee with respect to the Notes of such series.
“ Trust Indenture Act ” or “ TIA ” shall mean the Trust Indenture Act of 1939, as amended from time to time, and any successor statute.
“ U.S. Government Obligations ” shall mean 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, which, in either case under clauses (i) or (ii), are not callable or prepayable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction with respect to the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
7
ARTICLE II
NOTES
Section 2.01 Authentication and Dating; Title and Terms . The aggregate principal amount of Notes that may be authenticated, delivered and issued under this Indenture is $100,000,000, as from time to time authorized by or pursuant to a Board Resolution.
The Notes may be issued in one or more series. All Notes of each series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account of the actual time or times of the authentication and delivery or Maturity Date of the Notes of such series. With respect to any series of Notes to be issued hereunder, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate of the Corporation, or established in one or more indentures supplemental hereto, which shall be delivered to the Trustee prior to the issuance of such series of Notes:
(1) the form of the Notes of the series;
(2) the title of the Notes of the series (which shall distinguish such Notes of the series from all other Notes);
(3) any limit upon the aggregate principal amount of the Notes of the series which may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of that series pursuant to this Article II);
(4) the date or dates on which the Notes of such series may be issued (the “Issue Date”);
(5) the date or dates on which the Notes of such series will mature;
(6) the date or dates, which may be serial, on which the principal of, and premium, if any, on the Notes of such series shall be payable;
(7) the rate or rates, or the method of determination thereof, at which the Notes of such series shall bear interest, if any (the “Interest Rate”), the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable, and the method of computation thereof.
(8) the place or places where the principal of, and premium, if any, and interest, if any, on Notes of the series shall be payable if other than as provided in Section 3.02 hereof;
(9) if other than denominations of $1,000 and any integral multiple thereof, in Dollars or the Foreign Currency or currency unit in which the Notes of such series are denominated, the denominations in which Notes of such series shall be issuable;
8
(10) if other than the principal amount thereof, the portion of the principal amount of Notes of such series which shall be payable upon declaration of acceleration of the Maturity Date thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04;
(11) whether payment of the principal of, premium, if any, and interest, if any, on the Notes of such series shall be with or without deduction for taxes, assessments or governmental charges, and with or without reimbursement of taxes, assessments or governmental charges paid by Noteholders;
(12) any Events of Default or Default with respect to the Notes of such series, if not set forth herein;
(13) in case the Notes of such series do not bear interest, the applicable dates for the purpose of clause (a) of Section 4.01;
(14) a description of any provisions providing for redemption, exchange or conversion of the Notes of such series at the Corporation’s option, a Noteholder’s option or otherwise, and the terms and provisions of such redemption, exchange or conversion;
(15) whether the Notes of any series are entitled to the benefit of a sinking fund, and the terms thereof;
(16) the currency or currencies, or currency unit or currency units, whether in Dollars or a Foreign Currency or currency unit, in which the principal of, and premium, if any, and interest, if any, on the Notes of such series or any other amounts payable with respect thereto, and whether such principal, premium, if any, and interest, if any, payable otherwise than in Dollars may, at the option of the Noteholders of any Note of such series, also be payable in Dollars;
(17) if other than as set forth in Section 12.01, provisions for the satisfaction and discharge of the indebtedness represented by the Notes of such series;
(18) whether the Notes of such series are issuable as a Global Note and, in such case, the identity of the Depositary for such series, if other than The Depository Trust Company;
(19) if the amount of payment of principal of (and premium, if any) or interest on the Notes of such series may be determined with reference to an index, formula or other method based on a coin, currency or currency unit other than that in which the Notes are stated to be payable or otherwise, the manner in which such amounts shall be determined;
(20) any other terms of such series of Notes (which terms shall not be inconsistent with the provisions of this Indenture); and
(21) any Trustees, Paying Agents, or Registrars with respect to the Notes of such series, if other than the initial Trustee.
9
Any inconsistency between the terms set forth in this Indenture and the provisions of a Board Resolution or an indenture supplemental hereto relating to the items in (1) through (21) above shall be resolved in favor of such Board Resolution or Supplemental Indenture.
All Notes of any one series need not be issued at the same time and, unless otherwise so provided by the Corporation, a series may be reopened for issuances of additional Notes of such series or to establish additional terms of such series of Notes.
If any of the terms of the Notes of any series shall be established by action taken by or pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of such series.
The Trustee shall be entitled to receive and shall be fully protected in relying on, in addition to the Opinion of Counsel to be furnished to the Trustee with the Officers' Certificate or supplemental indenture relating to the issuance of any series of Notes, an Opinion of Counsel stating that:
(i) all instruments furnished to the Trustee conform to the requirements of this Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and deliver such Notes;
(ii) all laws and requirements with respect to the form and execution by the Corporation of the supplemental indenture, if any, have been complied with and that the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate this Indenture, the Corporation has corporate power to execute and deliver any such supplemental indenture and have taken all necessary corporate action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Corporation enforceable in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect);
(iii) the form and terms of such Notes have been established in conformity with the provisions of this Indenture;
(iv) all laws and requirements with respect to the execution and delivery by the Corporation of such Notes has been complied with and the authentication and delivery of any such Notes by the Trustee will not violate the terms of the Indenture, the Corporation has the corporate power to issue such Notes and such Notes has been duly authorized and delivered by the Corporation and, assuming due authentication and delivery of such Notes by the Trustee, such Notes constitute legal, valid and binding obligations of the Corporation, enforceable in accordance with its terms (subject, as to enforcement of remedies to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect) and entitled to the benefits of this Indenture, equally and ratably with all other Notes, if any, of such series Outstanding;
(v) the amount of the Notes Outstanding, including such Notes, does not exceed the amount at the time permitted by law;
10
(vi) no Default or Event of Default with respect to any series of Notes has occurred or is continuing;
(vii) this Indenture is qualified under the Trust Indenture Act; and
(viii) the issuance of such Notes will not contravene the Articles of Incorporation or the By-Laws of the Corporation or result in any violation of any of the terms or the provisions of any indenture, mortgage or other agreement known to such counsel by which the Corporation or any of its subsidiaries is bound.
In addition, the Opinion of Counsel and the Officers' Certificate will cover such other matters as the Trustee may reasonably request.
Section 2.02 Forms Generally; Form of Trustee’s Certificate of Authentication .
The Notes of each series and the Trustee’s certificate of authentication on such Notes shall be in substantially the form as shall be established pursuant to this Article II in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Corporation 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 rules or regulations made pursuant thereto or with any rules or regulations of any securities exchange or as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of the Notes.
The Definitive Notes of each series shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Notes as evidenced by their execution of such Notes.
The Trustee’s certificate of authentication on all Notes shall be in substantially the following form:
This certificate represents Notes of the Corporation referred to in the within-mentioned Indenture.
11
By: ____________________________ Authorized Officer
Section 2.03 Form of Note . The Note of each series shall be substantially in the form of Exhibit A hereto, the terms of which are incorporated in and made a part of this Indenture. The Notes shall be issued, and may be transferred, only in denominations having an aggregate principal amount of not less than $1,000 and integral multiples of $1,000 in excess thereof. The Notes shall be in registered form without coupons and shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plans as the officers executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof.
Section 2.04 Execution of Notes . The Notes of each series shall be signed in the name and on behalf of the Corporation by the manual or facsimile signature of its President, Chief Executive Officer, Chief Financial Officer, one of its Executive Vice Presidents, or General Counsel under its corporate seal (if legally required) which may be affixed thereto or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise, and which need not be attested. Only such Notes as shall bear thereon a certificate of authentication substantially in the form herein before recited, executed by the Trustee or the Authenticating Agent by the manual or facsimile signature of an authorized officer, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee or the Authenticating Agent upon any Note executed by the Corporation shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Corporation who shall have signed any Note shall cease to be such officer before the Note so signed shall have been authenticated and delivered by the Trustee or the Authenticating Agent, or disposed of by the Corporation, such Note nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Note had not ceased to be such officer of the Corporation; and any Note may be signed on behalf of the Corporation by such Persons as, at the actual date of the execution of such Note, shall be the proper officers of the Corporation, although at the date of the execution of this Indenture any such person was not such an officer.
Every Note shall be dated the date of its authentication.
In each case where the Trustee is to authenticate and deliver Notes pursuant to the terms of this Indenture, it shall receive a Corporation Order.
If all the Notes of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel and an Officers’ Certificate at the time of issuance of each Note, but such opinion and certificate, with appropriate modifications, shall be delivered at or before the time of issuance of the first Note of such series. After any such first delivery, any separate request by the Corporation that the Trustee authenticate Notes of such series for original issue will be deemed to be a certification by the Corporation that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Notes continue to have been complied with.
12
The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if a Responsible Officer of the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Noteholders.
Section 2.05 Legends . Each Note shall bear the applicable legends substantially in the form set forth in Exhibit A hereto.
Section 2.06 Global Note .
(a) Each Global Note for any series issued under this Indenture shall be registered in the name of the Depositary designated by the Corporation for such Global Note or a nominee of such Depositary and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Note shall represent the aggregate amount of Outstanding Notes from time to time endorsed thereon for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Note may be exchanged in whole or in part for Definitive Notes, and no transfer of a Global Note in whole or in part may be registered in the name of any Person other than the Depositary for such Global Note or a nominee thereof unless (i) such Depositary notifies the Trustee or the Corporation in writing that such Depositary is no longer willing or able to properly discharge its responsibilities as Depositary with respect to such Global Note, and no qualified successor is appointed by the Corporation within ninety (90) days of receipt of such notice, (ii) the Corporation executes and delivers to the Trustee a Corporation Order stating that the Corporation elects to terminate the book-entry system through the Depositary, (iii) such Depositary ceases to be a Clearing Agency registered under the Exchange Act and no successor is appointed by the Corporation within ninety (90) days after obtaining knowledge of such event or (iv) an Event of Default shall have occurred and be continuing. Upon a Responsible Officer having actual knowledge of the occurrence of any event specified in clause (i), (ii), (iii) or (iv) above, the Trustee shall notify the Depositary and instruct the Depositary to notify all owners of beneficial interests in such Global Note of the occurrence of such event and of the availability of Definitive Notes of the same series to such beneficial owners requesting the same. Upon the issuance of such Definitive Notes and the registration in the Note Register of such Notes in the names of the holders thereof, the Trustee shall recognize such holders as holders of Notes for all purposes of this Indenture and the Notes.
(c) If any Global Note is to be exchanged for Definitive Notes of the same series or cancelled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Registrar for exchange or cancellation as provided in this Article. If any Global Note is to be exchanged for Definitive Notes of the same series or canceled in part, then either (i) such Global Note shall be so surrendered for exchange or cancellation as provided in this Article or (ii) the principal amount of the Global Note or Global Notes, as the case may be, shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or canceled, or equal to the principal amount of such Definitive Notes to be so exchanged for beneficial interests therein, as the case may be, by means of an appropriate adjustment made on the records of the Registrar, whereupon the Trustee, in accordance with the Applicable Depositary Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Note by the Depositary, accompanied by registration instructions, the Corporation shall execute and the Trustee shall authenticate and deliver Definitive Notes of the same series issuable in exchange for such Global Note (or any portion thereof) in accordance with the instructions of the Depositary. The Trustee may conclusively rely on, and shall be fully protected in relying on, such instructions.
13
(d) Every Note of any series authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note or any portion thereof shall be authenticated and delivered in the form of, and shall be, a Global Note, unless such Note is registered in the name of a Person other than the Depositary for such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a Global Note, shall be the holder of such Global Note for all purposes under this Indenture and the Notes, and owners of beneficial interests in a Global Note shall hold such interests pursuant to the Applicable Depositary Procedures. Accordingly, any such owner’s beneficial interest in a Global Note shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Depositary Participants. The Registrar and the Trustee shall be entitled to deal with the Depositary for all purposes of this Indenture relating to a Global Note as the sole holder of the Note and shall have no obligation to any beneficial owner of a Global Note. Neither the Trustee nor the Registrar shall have any liability in respect of any transfers effected by the Depositary or its Depositary Participants.
(f) The rights of owners of beneficial interests in a Global Note shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such owners and the Depositary and/or its Depositary Participants.
(g) No owner of any beneficial interest in any Global Note shall have any rights under this Indenture with respect to such Global Note. None of the Corporation, the Trustee nor any agent of the Corporation or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Corporation, the Trustee or any agent of the Corporation or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and such beneficial owners, the operation of customary practices governing the exercise of the rights of the Depositary or its nominee as holder of any Note.
(h) Global Notes shall bear the following legend on the face thereof :
14
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES SPECIFIED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 2.07 Computation of Interest .
(a) The amount of interest payable for any Interest Period (as defined below) in respect of a series of Notes will be computed as provided in the Notes for such series.
(b) Each Note of any series will bear interest at the Interest Rate (i) in the case of the initial Interest Period, for the period from, and including, the date of original issuance of such Note to, but excluding, the initial Interest Payment Date and (ii) thereafter, for the period from, and including, the first day following the end of the preceding Interest Period to, but excluding, the applicable Interest Payment Date or, in the case of the last Interest Period, the Maturity Date (each such period, an “Interest Period”), on the principal thereof, on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest (including Defaulted Interest), payable on each Interest Payment Date or the Maturity Date, as the case may be. Interest on any Note that is payable, and is punctually paid or duly provided for by the Corporation, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest installment.
(c) Any interest on any series of Note that is payable, but is not punctually paid or duly provided for by the Corporation, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the holder on the relevant Regular Record Date by virtue of having been such holder, and such Defaulted Interest shall be paid by the Corporation to the Persons in whose names such Notes (or their respective Predecessor Notes) 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 Corporation shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Note and the date of the proposed payment, and at the same time the Corporation 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 reasonably 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 provided in this paragraph. 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 Corporation of such special record date and, in the name and at the expense of the Corporation, 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 Noteholder at his or her address as it appears in the Note Register, 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 Notes (or their respective Predecessor Notes) are registered on such special record date and thereafter the Corporation shall have no further payment obligation in respect of the Defaulted Interest.
15
(d) The Corporation may make payment of any Defaulted Interest on any series of Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Corporation to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(e) Subject to the foregoing provisions of this Section 2.07, each Note of a series delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Note.
Section 2.08 Transfer and Exchange .
(a) The Corporation shall cause to be kept, at the office or agency maintained for the purpose of registration of transfer and for exchange, as provided in Section 3.02, the Note Register in which, subject to such reasonable regulations as it may prescribe, the Corporation shall provide for the registration and transfer of all Notes of each series as provided in this Article II. The Note Register shall be in written form or in any other form capable of being converted into written form within a reasonable time.
Notes of any series to be exchanged may be surrendered at the Principal Office of the Trustee or at any office or agency to be maintained by the Corporation for such purpose as provided in Section 3.02, and the Corporation shall execute, the Corporation or the Trustee shall register and the Trustee or the Authenticating Agent shall authenticate and make available for delivery in exchange therefor, the Note or Notes of such series which the Noteholder making the exchange shall be entitled to receive. Upon due presentment for registration of transfer of a Note of any series at the Principal Office of the Trustee or at any office or agency of the Corporation maintained for such purpose as provided in Section 3.02, the Corporation shall execute, the Corporation or the Trustee shall register and the Trustee or the Authenticating Agent shall authenticate and make available for delivery in the name of the transferee or transferees, a new Note of such series for a like aggregate principal amount. Registration or registration of transfer of a Note of any series by the Trustee or by any agent of the Corporation appointed pursuant to Section 3.02, and delivery of such Note, shall be deemed to complete the registration or registration of transfer of such Note.
16
All Notes of any series presented for registration of transfer or for exchange or payment shall (if so required by the Corporation or the Trustee or the Authenticating Agent) be duly endorsed by, or be accompanied by, a written instrument or instruments of transfer in form satisfactory to the Corporation and either the Trustee or the Authenticating Agent duly executed by, the holder or such holder’s attorney duly authorized in writing.
(b) To permit registrations of transfers and exchanges, the Corporation shall execute and the Trustee, upon receipt of a Corporation Order to do so, shall authenticate and deliver Definitive Notes and Global Notes at the written request of the Registrar for a series of Notes. All Definitive Notes and Global Notes issued upon any registration of transfer or exchange of Definitive Notes or Global Notes shall be the valid obligations of the Corporation, evidencing the same debt, the same series and entitled to the same benefits under this Indenture, as the Definitive Notes or Global Notes surrendered upon such registration of transfer or exchange.
No service charge shall be made for any exchange or registration of transfer of Notes, but the Corporation or the Trustee may require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in connection therewith other than exchanges pursuant to Section 2.10 or 9.03 not involving any transfer.
Prior to due presentment for the registration of a transfer of any Note, the Trustee, the Corporation and any agent of the Trustee or the Corporation may deem and treat the Person in whose name such Note is registered as the absolute owner and holder of such Note for the purpose of receiving payment of principal of and premium, if any, and interest on such Note and none of the Trustee, the Corporation or any agents of the Trustee or the Corporation shall be affected by notice to the contrary.
Section 2.09 Mutilated, Destroyed, Lost or Stolen Notes .
In case a Note of any series shall become mutilated or be destroyed, lost or stolen, the Corporation shall execute, and upon receipt of a Corporation Order to do so the Trustee shall authenticate and deliver, a new Note of such series bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Corporation and the Trustee such security or indemnity as may be reasonably 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 Corporation and the Trustee evidence to their reasonable satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
Upon the issuance of any substituted Note, the Corporation 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 connected therewith. In case any Note which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Corporation may, instead of issuing a substitute Note, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Note) if the applicant for such payment shall furnish to the Corporation and the Trustee such security or indemnity as may be reasonably required by them to save each of them harmless and, in case of destruction, loss or theft, evidence reasonably satisfactory to the Corporation and to the Trustee of the destruction, loss or theft of such Note and of the ownership thereof.
17
Every substituted Note issued pursuant to the provisions of this Section 2.09 by virtue of the fact that any such Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Corporation, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. All Notes shall be held and owned upon the express condition that, to the extent permitted by applicable law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other notes without their surrender.
Section 2.10 Temporary Notes. Pending the preparation of Definitive Notes of any series, the Corporation may execute and the Trustee shall authenticate and make available for delivery Temporary Notes of such series that are typed, printed or lithographed. Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Definitive Notes of the same series but with such omissions, insertions and variations as may be appropriate for Temporary Notes, all as may be determined by the Corporation. Every such Temporary Note shall be executed by the Corporation and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Definitive Notes of the same series. Without unreasonable delay, the Corporation will execute and deliver to the Trustee or the Authenticating Agent Definitive Notes and thereupon any or all Temporary Notes may be surrendered in exchange therefor, at the Principal Office of the Trustee or at any office or agency maintained by the Corporation for such purpose as provided in Section 3.02, and the Trustee or the Authenticating Agent shall authenticate and make available for delivery in exchange for such Temporary Notes a like aggregate principal amount of such Definitive Notes of the same series. Such exchange shall be made by the Corporation at its own expense and without any charge therefor except that in case of any such exchange involving a registration of transfer the Corporation may require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in relation thereto. Until so exchanged, the Temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes of the same series authenticated and delivered hereunder.
Section 2.11 Cancellation . All Notes surrendered for the purpose of payment, exchange or registration of transfer, shall, if surrendered to the Corporation or any Paying Agent, be surrendered to the Trustee and promptly canceled by it, or, if surrendered to the Trustee or any Authenticating Agent, shall be promptly canceled by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All Notes canceled by any Authenticating Agent shall be delivered to the Trustee. The Trustee shall destroy all canceled Notes unless the Corporation otherwise directs the Trustee in writing, in which case the Trustee shall dispose of such Notes as directed by the Corporation. If the Corporation shall acquire any of the Notes, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation.
18
Section 2.12 CUSIP Numbers . The Corporation in issuing the Notes of any series may use a “CUSIP” number (if then generally in use). The Corporation will promptly notify the Trustee in writing of any change in the CUSIP number.
ARTICLE III
PARTICULAR COVENANTS OF THE CORPORATION
Section 3.01 Payment of Principal and Interest . The Corporation covenants and agrees for the benefit of the holders of the Notes of any series that it will duly and punctually pay or cause to be paid the principal of and interest on the Notes of such series at the place, at the respective times and in the manner provided herein. Payment of the principal of and premium, if any, and interest on the Notes of any series due on the Maturity Date will be made by the Corporation in immediately available funds against presentation and surrender of the Notes of such series. At the option of the Corporation, each installment of interest on the Notes of such series due on an Interest Payment Date other than the Maturity Date may be paid (i) by mailing checks for such interest payable to the order of the holders of Notes of such series entitled thereto as they appear on the Note Register or (ii) by wire transfer of immediately available funds to any account with a banking institution located in the United States designated by such holder no later than the related Regular Record Date.
Section 3.02 Offices for Notices and Payments, Etc. So long as any of the Notes of any series remain Outstanding, the Corporation will maintain in New York, New York or _________, ________ (a) an office or agency where the Notes of such series may be presented for payment (the “ Paying Agent ”), (b) an office or agency where the Notes of such series may be presented for registration of transfer (the “ Registrar ”) and (c) an office or agency where notices and demands to or upon the Corporation in respect of the Notes of such series or this Indenture may be served. The Registrar shall keep a register of the Notes of each series and of their transfer. The Corporation will appoint the Registrar and the Paying Agent and may appoint one or more co-registrars or one or more additional Paying Agents in such other locations as it shall determine. The term “Registrar” includes any additional registrar, the term “Paying Agent” includes any additional Paying Agent. The Corporation may change any Paying Agent, Registrar or co-registrar without prior notice to any Noteholder. Any Agent shall be permitted to resign upon 30 days’ written notice to the Corporation. The Corporation shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Corporation fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such at the Principal Office of the Trustee. The Corporation or any of its Affiliates may act as Paying Agent or Registrar. The Corporation will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. In case the Corporation shall fail to maintain any such office or agency in New York, New York or __________, ___________ or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Principal Office of the Trustee.
In addition to any such office or agency, the Corporation may from time to time designate one or more offices or agencies outside New York, New York and ___________, __________ where the Notes of any series may be presented for payment or for registration of transfer and where notices and demands to or upon the Corporation in respect of such Notes or this Indenture may be served in the manner provided in this Indenture, and the Corporation may from time to time rescind such designation, as the Corporation may deem desirable or expedient; provided , however , that no such designation or rescission shall in any manner relieve the Corporation of its obligation to maintain any such office or agency in New York, New York or ___________, ___________ for the purposes above mentioned. The Corporation will give to the Trustee prompt written notice of any such designation or rescission thereof.
19
The Corporation initially appoints the Trustee as Paying Agent and Registrar for the Notes.
Section 3.03 Appointments to Fill Vacancies in Trustee’s Office . The Corporation, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 3.04 Provision as to Paying Agent .
(a) Whenever the Corporation shall have one or more Paying Agents, it will, on or prior to 11:00 a.m. New York, New York time on each due date of the principal of or interest on, the Notes of any series, deposit with a Paying Agent a sum sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the benefit of the persons entitled to such principal or interest, and unless such Paying Agent is the Trustee, the Paying Agent will promptly notify the Trustee of the Corporation’s action or failure so to act.
(b) If the Corporation shall appoint a Paying Agent other than the Trustee with respect to the Notes of any series, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 3.04,
(i) that it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest on the Notes of such series (whether such sums have been paid to it by the Corporation or by any other obligor on such Notes) in trust for the benefit of the holders of such Notes; and
(ii) that it will give the Trustee notice of any failure by the Corporation (or by any other obligor on the Notes of such series) to make any payment of the principal of, premium, if any, or interest on such Notes when the same shall be due and payable.
(c) If the Corporation shall act as its own Paying Agent, it will, on or before each due date of the principal of or interest on the Notes of any series, set aside, segregate and hold in trust for the benefit of the holders of such Notes a sum sufficient to pay such principal or interest so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Corporation (or by any other obligor under such Notes) to make any payment of the principal of, premium, if any, or interest on such Notes when the same shall become due and payable.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the Corporation may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to the Notes of any series hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums payable with respect to such Notes, such sums to be held by the Trustee upon the trusts herein contained.
20
(e) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.04 is subject to Sections 12.03 and 12.04.
Section 3.05 Certificate to Trustee . The Corporation will deliver to the Trustee on or before 120 days after the end of each fiscal year of the Corporation, commencing with the first fiscal year ending after the date hereof, so long as Notes of any series are Outstanding hereunder, an Officers’ Certificate in the form attached hereto as Exhibit B , one of the signers of which shall be the principal executive, principal financial or principal accounting officer of the Corporation, stating that in the course of the performance by the signers of their duties as officers of the Corporation, they would normally have knowledge of any Default or Event of Default (or any event which after notice or the lapse of time or both, would be, a Default or an Event of Default) with respect to such series by the Corporation in the performance of any covenants contained herein, stating whether or not they have knowledge of any such Default or Event of Default (or event which after notice or the lapse of time or both, would be, a Default or an Event of Default) and, if so, specifying each such Default or Event of Default or event of which the signers have knowledge, the nature thereof and the action, if any, the Corporation intends to undertake as a result of such Default or Event of Default or event.
The Corporation will promptly notify the Trustee in writing, upon obtaining knowledge of any default under this Indenture and shall comply with the provisions of Section 314(a)(4) of the Trust Indenture Act.
Section 3.06 Compliance with Consolidation Provisions . The Corporation will not, while any of the Notes remain Outstanding, consolidate with, or merge into, or merge into itself, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article X hereof are complied with.
Section 3.07 Limitation on Dividends . The Corporation will not (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Corporation’s capital stock, (b) make any payment of principal of, or interest on, or repay, repurchase or redeem any debt securities of the Corporation that rank pari passu with or junior in right of payment to the Notes other than such payments, repayments, repurchases or redemptions of debt securities of the Corporation that rank equal with the Notes that are made on a pro rata basis with payments, repayments or repurchases on the Notes or (c) make any guarantee payments with respect to any guarantee by the Corporation of the debt securities of any Subsidiary of the Corporation if such guarantee ranks pari passu with or junior in right of payment to the Notes (other than (i) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of, Common Stock, (ii) any declaration of a dividend in connection with the implementation of a stockholders’ rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (iii) as a result of a reclassification of the Corporation’s capital stock or the exchange or conversion of one class or series of the Corporation’s capital stock for another class or series of the Corporation’s capital stock, (iv) the purchase of fractional interests in shares of the Corporation’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged and (v) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Corporation’s benefit or compensation plans for its directors, officers or employees or any of the Corporation’s dividend reinvestment plans), if at such time there shall have occurred any event, act or condition that (a) is a Default or an Event of Default (or any event which, after notice or the lapse of time or both would become, a Default or an Event of Default) and (b) in respect of which the Corporation shall not have taken reasonable steps to cure.
21
Section 3.08 Payment Upon Resignation or Removal . Upon termination of this Indenture or the removal or resignation of the Trustee, the Corporation shall pay to the Trustee all amounts accrued and owing to the Trustee to the date of such termination, removal or resignation.
ARTICLE IV
LIST OF NOTEHOLDERS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
Section 4.01 List of Noteholders . The Corporation covenants and agrees that it will furnish or cause to be furnished to the Trustee, in accordance with Section 312(a) of the Trust Indenture Act, (a) semiannually and not more than 10 days after the Regular Record Date for each series, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Noteholders of Notes of such series as of such date, and on dates to be determined pursuant to Section 2.01 for non-interest bearing Notes of such series in each year, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Corporation of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, except that, so long as the Trustee is Registrar, no such list need be furnished.
Section 4.02 Preservation and Disclosure of Lists .
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of the Notes (i) contained in the most recent list furnished to it as provided in Section 4.01 or (ii) received by it in its capacity as Registrar (if so acting) hereunder. The Trustee may destroy any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Notes of any series (hereinafter referred to as “ applicants ”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Note of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of Notes of such series or with holders of all Notes with respect to their rights under this Indenture and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 4.02; or
(ii) inform such applicants as to the approximate number of holders of all Notes whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 4.02, and as to the approximate cost of mailing to such Noteholders the form of proxy or other communication, if any, specified in such application.
22
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Noteholder whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 4.02 a copy of the form of proxy or other communication which is specified in such request with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing.
(c) Each and every holder of Notes, by receiving and holding the same, agrees with the Corporation and the Trustee that neither the Corporation nor the Trustee nor any Paying Agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the holders of Notes in accordance with the provisions of subsection (b) of this Section 4.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).
(d) The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act, subject to the exculpation from liability contained in Section 312(c) of such Act.
Section 4.03 Reports by the Corporation .
(a) The Corporation covenants and agrees to provide to the Trustee, by hard copy or electronic transmission, within 15 days after the date on which the Corporation is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Corporation may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. In the event that the Corporation is not required or permitted to file such reports, documents and information with the Commission pursuant to the Exchange Act, the Corporation will nevertheless deliver a copy of such Exchange Act information to the Trustee and the holders of the Notes as if the Corporation were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein. The Corporation also covenants and agrees to comply with the provisions of Section 314(a) of the Trust Indenture Act.
(b) To the extent applicable, the Corporation covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Corporation with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
(c) To the extent applicable, the Corporation covenants and agrees to transmit by mail to all holders of Notes, as the names and addresses of such holders appear upon the Note Register, within 30 days after the filing or submission thereof with the Trustee, such summaries of any information, documents and reports provided by the Corporation pursuant to subsections (a) and (b) of this Section 4.03.
23
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Corporation’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(e) For purposes of this Section 4.03, the Corporation will be deemed to have furnished or delivered reports to the Trustee and the Noteholders if (i) such reports are filed with the Commission via the EDGAR filing system, (ii) such reports are currently available, and (iii) the Corporation electronically delivers to the Trustee a link to the EDGAR filing each time the Corporation files such a report.
(f) The Corporation shall comply with the provisions of Section 314(a)(1)(2) and (3) of the Trust Indenture Act.
Section 4.04 Reports by the Trustee .
(a) To the extent applicable, the Trustee shall transmit to Noteholders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after the date hereof, and no later than the anniversary date hereof in each succeeding year, deliver to Noteholders a brief report, dated as of each such date which complies with the provisions of such Section 313(a).
(b) To the extent applicable, a copy of each such report shall, at the time of such transmission to Noteholders, be filed by the Trustee with each stock exchange, if any, upon which the Notes are listed, with the Commission and with the Corporation. The Corporation will promptly notify the Trustee when the Notes are listed on any stock exchange.
(c) Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in the manner and the extent provided in Section 313(c) of the Trust Indenture Act.
ARTICLE V
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS UPON EVENT OF DEFAULT
Section 5.01 Events of Default . “Event of Default,” wherever used herein with respect to the Notes of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officers’ Certificate establishing the terms of such series of Notes pursuant to this Indenture:
24
(a) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Corporation in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Corporation 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
(b) the Corporation shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due.
Section 5.02 Acceleration of Maturity . If an Event of Default occurs and is continuing, then in every such case the principal amount of all of the Notes shall become and be immediately due and payable without any declaration or other action on the part of the Trustee or any holder.
Section 5.03 Payment of Notes on Default; Suit Therefor . The Corporation covenants that (i) in case default shall be made in the payment of any installment of interest, on any of the Notes of a series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (ii) in case default shall be made in the payment of the principal of the Notes of a series as and when the same shall have become due and payable, whether at maturity of the Notes of such series or by acceleration or otherwise, then, upon demand of the Trustee, the Corporation will pay to the Trustee, for the benefit of the holders of such series of Notes, the whole amount that then shall have become due and payable on all such Notes for principal or interest or both, as the case may be, with interest upon the overdue principal and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest at the rate borne by such Notes; 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, its agents, attorneys and counsel, and any other amount due to the Trustee pursuant to Section 6.06.
In case the Corporation 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 actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Corporation or any other obligor on such series of Notes and collect in the manner provided by law out of the property of the Corporation or any other obligor on such series of Notes, wherever situated, the moneys adjudged or decreed to be payable.
25
One or more of the following defaults shall constitute a Default hereunder with respect to a series of Notes (whatever the reason for such Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on such series of Notes when due, and continuance of such default for a period of 30 days; or
(b) default in the payment of any principal of such series of Notes when due, whether at maturity, by acceleration of maturity or otherwise.
Section 5.04 Trustee May File Proofs of Claim . In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Corporation or any other obligor on the Notes under Title 11, United States Code, or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Corporation or such other obligor, or in the case of any other similar judicial proceedings relative to the Corporation or other obligor upon the Notes, or to the creditors or property of the Corporation or such other obligor, the Trustee, irrespective of whether the principal o |
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
