EXHIBIT 4.4
GENERAL STEEL HOLDINGS,
INC.
INDENTURE
Dated as of
, 20
DEBT SECURITIES
INDENTURE dated as of
,
20 , among General Steel Holdings,
Inc., a Nevada corporation (the “ Company
”), and
, as trustee (the “ Trustee
”).
WITNESSETH:
WHEREAS, the Company has duly authorized the
execution and delivery of this Indenture to provide for the
issuance of debentures, notes, bonds or other evidences of
indebtedness (the “ Securities ”) in an
aggregate principal amount of up to
to be issued from time to time in one or more series as provided in
this Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid and legally binding agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
That, in consideration of the premises and the
purchase of the Securities by the Holders thereof for the equal and
proportionate benefit of all of the present and future Holders of
the Securities, each party agrees and covenants as
follows:
ARTICLE I
DEFINITIONS
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein without definition
which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
and
(c) 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.
(d) References to “Article” or
“Section” or other subdivision herein are references to
an Article, Section or other subdivision of the Indenture, unless
the context otherwise requires.
Section 1.01 Definitions
.
(a) Unless otherwise defined in this Indenture
or the context otherwise requires, all terms used herein shall have
the meanings assigned to them in the Trust Indenture
Act.
(b) Unless the context otherwise requires, the
terms defined in this Section 1.01(b) shall for all purposes
of this Indenture have the meanings hereinafter set forth, the
following definitions to be equally applicable to both the singular
and the plural forms of any of the terms herein defined:
Affiliate:
The term “Affiliate,” with respect
to any specified Person shall mean any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the
purposes of this definition, “control” when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing.
Authenticating Agent:
The term “Authenticating Agent”
shall have the meaning assigned to it in
Section 11.09.
Board of
Directors:
The term “Board of Directors” shall
mean either the board of directors of the Company or the executive
or any other committee of that board duly authorized to act in
respect hereof.
Board
Resolution:
The term “Board Resolution” shall
mean a copy of a resolution or resolutions certified by the
Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or by a committee of the
Board of Directors to the extent that any such other committee has
been authorized by the Board of Directors to establish or approve
the matters contemplated) and to be in full force and effect on the
date of such certification and delivered to the Trustee.
Business
Day:
The term “Business Day,” when used
with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive
order to close.
Capital
Stock:
The term “Capital Stock” shall
mean:
(a) in the case of a corporation, corporate
stock;
(b) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate
stock;
(c) in the case of a partnership or limited
liability company, partnership interests (whether general or
limited) or membership interests; and
(d) any other interest or participation that
confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
Code:
The term “Code” shall mean the
Internal Revenue Code of 1986 as in effect on the date
hereof.
Company:
The term “Company” shall mean the
Person named as the “Company” in the first paragraph of
this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor
Person.
Company
Order:
The term “Company Order” shall mean
a written order signed in the name of the Company by the Chairman,
Chief Executive Officer, President, Chief Financial Officer, any
Vice President, Treasurer, any Assistant Treasurer, Controller,
Assistant Controller, Secretary or any Assistant Secretary of the
Company, and delivered to the Trustee.
Corporate
Trust Office:
The term “Corporate Trust Office,”
or other similar term, shall mean the principal office of the
Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is
located at
, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal
corporate trust officer of any successor Trustee (or such other
address as such successor Trustee may designate from time to time
by notice to the Holders and the Company).
Currency:
The term “Currency” shall mean U.S.
Dollars or Foreign Currency.
Default:
The term “Default” shall have the
meaning assigned to it in Section 11.03.
Defaulted
Interest:
The term “Defaulted Interest” shall
have the same meaning assigned to it in
Section 3.08(b).
Depositary:
The term “Depositary” shall mean,
with respect to the Securities of any series issuable in whole or
in part in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to
Section 3.01 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean or include each
Person who is then a Depositary hereunder, and if at any time there
is more than one such Person, “Depositary” as used with
respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that
series.
Designated Currency:
The term “Designated Currency” shall
have the same meaning assigned to it in
Section 3.12.
Discharged:
The term “Discharged” shall have the
meaning assigned to it in Section 12.03.
Event of
Default:
The term “Event of Default” shall
have the meaning specified in Section 7.01.
Exchange
Act:
The term “Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended.
Exchange
Rate:
The term “Exchange Rate” shall have
the meaning assigned to it in Section 7.01.
Floating
Rate Security:
The term “Floating Rate Security”
shall mean a Security that provides for the payment of interest at
a variable rate determined periodically by reference to an interest
rate index specified pursuant to Section 3.01.
Foreign
Currency:
The term “Foreign Currency” shall
mean a currency issued by the government of any country other than
the United States or a composite currency, the value of which is
determined by reference to the values of the currencies of any
group of countries.
GAAP:
The term “GAAP,” with respect to any
computation required or permitted hereunder, shall mean generally
accepted accounting principles in effect in the United States as in
effect from time to time, including, without limitation, those set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting
profession.
Global
Security:
The term “Global Security” shall
mean any Security that evidences all or part of a series of
Securities, issued in fully-registered certificated form to the
Depositary for such series in accordance with Section 3.03 and
bearing the legend prescribed in Section 3.03(g).
Holder;
Holder of Securities:
The terms “Holder” and “Holder
of Securities” are defined under “Security holder;
Holder of Securities; Holder.”
Indebtedness:
The term “Indebtedness” shall mean
any and all obligations of a Person for money borrowed which, in
accordance with GAAP, would be reflected on the balance sheet of
such Person as a liability on the date as of which Indebtedness is
to be determined.
Indenture:
The term “Indenture” or “this
Indenture” shall mean this instrument and all indentures
supplemental hereto.
Interest:
The term “interest” shall mean, with
respect to an Original Issue Discount Security that by its terms
bears interest only after Maturity, interest payable after
Maturity.
Interest
Payment Date:
The term “Interest Payment Date”
shall mean, with respect to any Security, the Stated Maturity of an
installment of interest on such Security.
Mandatory
Sinking Fund Payment:
The term “Mandatory Sinking Fund
Payment” shall have the meaning assigned to it in
Section 5.01.
Maturity:
The term “Maturity,” with respect to
any Security, shall mean the date on which the principal of such
Security shall become due and payable as therein and herein
provided, whether by declaration, call for redemption or
otherwise.
Members:
The term “Members” shall have the
meaning assigned to it in Section 3.03(i).
Officer’s Certificate:
The term “Officer’s
Certificate” shall mean a certificate signed by any of the
Chairman of the Board of Directors, Chief Executive Officer,
President, Chief Financial Officer, any Vice President, Treasurer,
any Assistant Treasurer, Controller, Assistant Controller,
Secretary or any Assistant Secretary of the Company and delivered
to the Trustee. Each such certificate shall include the statements
provided for in Section 16.01 if and to the extent required by
the provisions of such Section.
Opinion
of Counsel:
The term “Opinion of Counsel” shall
mean an opinion in writing signed by legal counsel, who may be an
employee of or of counsel to the Company, or may be other counsel
that meets the requirements provided for in
Section 16.01.
Optional
Sinking Fund Payment:
The term “Optional Sinking Fund
Payment” shall have the meaning assigned to it in
Section 5.01.
Original
Issue Discount Security:
The term “Original Issue Discount
Security” shall mean any Security that is issued with
“original issue discount” within the meaning of
Section 1273(a) of the Code and the regulations thereunder and
any other Security designated by the Company as issued with
original issue discount for United States federal income tax
purposes.
Outstanding:
The term “Outstanding,” when used
with respect to Securities means, as of the date of determination,
all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities or portions thereof for which
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities or Securities as to which the
Company’s obligations have been Discharged; provided,
however, that if such Securities or portions thereof are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefore satisfactory to the Trustee
has been made; and
(c) Securities that have been paid pursuant to
Section 3.07(b) or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to a Responsible Officer of the Trustee
proof satisfactory to it that such Securities are held by a
protected purchaser in whose hands such Securities are valid
obligations of the Company;
provided,
however, that in determining whether the Holders of the requisite
principal amount of Securities of a series Outstanding have
performed any action hereunder, Securities owned by the Company or
any other obligor upon the Securities of such series or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon
any such action, only Securities of such series that a Responsible
Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right to act
with respect to such Securities and that the pledgee is not the
Company or any other obligor upon such Securities or any Affiliate
of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Securities
of a series have performed any action hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 and the principal
amount of a Security denominated in a Foreign Currency that shall
be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 3.11(b).
Paying
Agent:
The term “Paying Agent” shall have
the meaning assigned to it in Section 6.02(a).
Person:
The term “Person” shall mean an
individual, a corporation, a limited liability company, a
partnership, an association, a joint stock company, a trust, an
unincorporated organization or a government or an agency or
political subdivision thereof.
Place of
Payment:
The term “Place of Payment” shall
mean, when used with respect to the Securities of any series, the
place or places where the principal of and premium, if any, and
interest on the Securities of that series are payable as specified
pursuant to Section 3.01.
Predecessor Security:
The term “Predecessor Security”
shall mean, with respect to any Security, 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 3.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen
Security.
Record
Date:
The term “Record Date” shall mean,
with respect to any interest payable on any Security on any
Interest Payment Date, the close of business on any date specified
in such Security for the payment of interest pursuant to
Section 3.01.
Redemption Date:
The term “Redemption Date” shall
mean, when used with respect to any Security to be redeemed, in
whole or in part, the date fixed for such redemption by or pursuant
to this Indenture and the terms of such Security, which, in the
case of a Floating Rate Security, unless otherwise specified
pursuant to Section 3.01, shall be an Interest Payment Date
only.
Redemption Price:
The term “Redemption Price,” when
used with respect to any Security to be redeemed, in whole or in
part, shall mean the price at which it is to be redeemed pursuant
to the terms of the Security and this Indenture.
Register:
The term “Register” shall have the
meaning assigned to it in Section 3.05(a).
Registrar:
The term “Registrar” shall have the
meaning assigned to it in Section 3.05(a).
Responsible Officers:
The term “Responsible Officers” of
the Trustee hereunder shall mean any Vice President, any Assistant
Vice President, any Trust Officer, any Assistant Trust Officer or
any other officer associated with the corporate trust department of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers, 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 person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
SEC:
The term “SEC” shall mean the U.S.
Securities and Exchange Commission, as constituted from time to
time.
Securities Act:
The term “Securities Act” shall mean
the Securities Act of 1933, as amended.
Security:
The term “Security” or
“Securities” shall have the meaning stated in the
recitals and shall more particularly mean one or more of the
Securities duly authenticated by the Trustee and delivered pursuant
to the provisions of this Indenture.
Security
Custodian:
The term “Security Custodian” shall
mean the custodian with respect to any Global Security appointed by
the Depositary, or any successor Person thereto, and shall
initially be the Paying Agent.
Securityholder; Holder of Securities;
Holder:
The term “Securityholder” or
“Holder of Securities” or “Holder,” shall
mean the Person in whose name Securities shall be registered in the
Register kept for that purpose hereunder.
Senior
Indebtedness:
The term “Senior Indebtedness” means
the principal of (and premium, if any) and unpaid interest on
(x) Indebtedness of the Company, whether outstanding on the
date hereof or thereafter created, incurred, assumed or guaranteed,
for money borrowed other than (a) any Indebtedness of the
Company which when incurred, and without respect to any election
under Section 1111(b) of the Federal Bankruptcy Code, was
without recourse to the Company, (b) any Indebtedness of the
Company to any of its Subsidiaries, (c) Indebtedness to any
employee of the Company, (d) any liability for taxes,
(e) Trade Payables and (f) any Indebtedness of the
Company which is expressly subordinate in right of payment to any
other Indebtedness of the Company, and (y) renewals,
extensions, modifications and refundings of any such Indebtedness.
For purposes of the foregoing and the definition of “Senior
Indebtedness,” the phrase “subordinated in right of
payment” means debt subordination only and not lien
subordination, and accordingly, (i) unsecured indebtedness
shall not be deemed to be subordinated in right of payment to
secured indebtedness merely by virtue of the fact that it is
unsecured, and (ii) junior liens, second liens and other
contractual arrangements that provide for priorities among Holders
of the same or different issues of indebtedness with respect to any
collateral or the proceeds of collateral shall not constitute
subordination in right of payment. This definition may be modified
or superseded by a supplemental indenture.
Special
Record Date:
The term “Special Record Date” shall
have the meaning assigned to it in
Section 3.08(b)(i).
Stated
Maturity:
The term “Stated Maturity” when used
with respect to any Security or any installment of interest
thereon, shall mean the date specified in such Security as the
fixed date on which the principal (or any portion thereof) of or
premium, if any, on such Security or such installment of interest
is due and payable.
Subsidiary:
The term “Subsidiary,” when used
with respect to any Person, shall mean:
(a) any corporation, limited liability company,
association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency and after giving effect
to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof);
and
(b) any partnership (i) the sole general
partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (ii) the only general partners
of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).
Successor
Company:
The term “Successor Company” shall
have the meaning assigned to it in Section 3.06(i).
Trade
Payables:
The term “Trade Payables” means
accounts payable or any other Indebtedness or monetary obligations
to trade creditors created or assumed by the Company or any
Subsidiary of the Company in the ordinary course of business
(including guarantees thereof or instruments evidencing such
liabilities).
Trust
Indenture Act; TIA:
The term “Trust Indenture Act” or
“TIA” shall mean the Trust Indenture Act of 1939, as
amended.
Trustee:
The term “Trustee” shall mean the
Person named as the “Trustee” in the first paragraph of
this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter
“Trustee” shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, “Trustee” as used with respect to the
Securities of any series shall mean the Trustee with respect to
Securities of that series.
U.S.
Dollars:
The term “U.S. Dollars” shall mean
such currency of the United States as at the time of payment shall
be legal tender for the payment of public and private
debts.
U.S.
Government Obligations:
The term “U.S. Government
Obligations” shall mean (i) direct non-callable
obligations of, or guaranteed by, the United States or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States, in
either case, for the payment of which guarantee or obligation the
full faith and credit of the United States is pledged.
United
States:
The term “United States” shall mean
the United States of America (including the States and the District
of Columbia), its territories and its possessions and other areas
subject to its jurisdiction.
ARTICLE II
FORMS OF
SECURITIES
Section 2.01 Terms of the Securities
.
(a) The Securities of each series shall be
substantially in the form set forth in a Company Order or in one or
more indentures supplemental hereto, and shall have 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
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 securities exchange on which any
series of the Securities may be listed or of any automated
quotation system on which any such series may be quoted, or to
conform to usage, all as determined by the officers executing such
Securities as conclusively evidenced by their execution of such
Securities.
(b) The terms and provisions of the Securities
shall constitute, and are hereby expressly made, a part of this
Indenture, and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound
thereby.
Section 2.02 Form of Trustee’s
Certificate of Authentication .
(a) Only such of the Securities as shall bear
thereon a certificate substantially in the form of the
Trustee’s certificate of authentication hereinafter recited,
executed by the Trustee by manual signature, shall be valid or
become obligatory for any purpose or entitle the Holder thereof to
any right or benefit under this Indenture.
(b) Each Security shall be dated the date of its
authentication, except that any Global Security shall be dated as
of the date specified as contemplated in
Section 3.01.
(c) The form of the Trustee’s certificate
of authentication to be borne by the Securities shall be
substantially as follows:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
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Date of Authentication:
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, as Trustee
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By:
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Authorized
Signatory
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Section 2.03 Form of Trustee’s
Certificate of Authentication by an Authenticating Agent
.
If at any time there shall be an Authenticating
Agent appointed with respect to any series of Securities, then the
Trustee’s Certificate of Authentication by such
Authenticating Agent to be borne by Securities of each such series
shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities issued referred to
in the within-mentioned Indenture.
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Date of Authentication:
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, as Trustee
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By:
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as
Authenticating Agent
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By:
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Authorized
Signatory
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ARTICLE III
THE DEBT
SECURITIES
Section 3.01 Amount; Issuable in
Series .
The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is
. The Securities may be issued in one or more series. There shall
be set forth in a Company Order or in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series:
(a) the title of the Securities of the series
(which shall distinguish the Securities of such series from the
Securities of all other series, except to the extent that
additional Securities of an existing series are being
issued);
(b) any limit upon the aggregate principal
amount of the Securities of the series that may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon transfer of, or in exchange for,
or in lieu of, other Securities of such series pursuant to
Section 3.04, 3.06, 3.07, 4.06, or 14.05);
(c) the dates on which or periods during which
the Securities of the series may be issued, and the dates on, or
the range of dates within, which the principal of and premium, if
any, on the Securities of such series are or may be payable or the
method by which such date or dates shall be determined or
extended;
(d) the rate or rates at which the Securities of
the series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which
such interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable, and the Record Dates for the
determination of Holders to whom interest is payable on such
Interest Payment Dates or the method by which such date or dates
shall be determined, the right, if any, to extend or defer interest
payments and the duration of such extension or deferral;
(e) if other than U.S. Dollars, the
Currency in which Securities of the series shall be denominated or
in which payment of the principal of, premium, if any, or interest
on the Securities of the series shall be payable and any other
terms concerning such payment;
(f) if the amount of payment of principal of,
premium, if any, or interest on the Securities of the series may be
determined with reference to an index, formula or other method
including, but not limited to, an index based on a Currency or
Currencies other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be
determined;
(g) if the principal of, premium, if any, or
interest on Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a Currency other
than that in which the Securities are denominated or stated to be
payable without such election, the period or periods within which,
and the terms and conditions upon which, such election may be made
and the time and the manner of determining the exchange rate
between the Currency in which the Securities are denominated or
payable without such election and the Currency in which the
Securities are to be paid if such election is made;
(h) the place or places, if any, in addition to
or instead of the Corporate Trust Office of the Trustee where the
principal of, premium, if any, and interest on Securities of the
series shall be payable, and where Securities of any series may be
presented for registration of transfer, exchange or conversion, and
the place or places where notices and demands to or upon the
Company in respect of the Securities of such series may be
made;
(i) the price or prices at which, the period or
periods within which or the date or dates on 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, if the Company
is to have that option;
(j) the obligation or right, if any, of the
Company to redeem, purchase or repay Securities of the series
pursuant to any sinking fund, amortization or analogous provisions
or at the option of a Holder thereof and the price or prices at
which, the period or periods within which or the date or dates on
which, the Currency or Currencies in which and the terms and
conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligation;
(k) if other than denominations of $1,000 or any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(l) if other than the principal amount thereof,
the portion of the principal amount of the Securities of the series
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(m) whether the Securities of the series are to
be issued as Original Issue Discount Securities and the amount of
discount with which such Securities may be issued;
(n) provisions, if any, for the defeasance of
Securities of the series in whole or in part and any addition or
change in the provisions related to satisfaction and
discharge;
(o) whether the Securities of the series are to
be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global
Security or Securities and the terms and conditions, if any, upon
which interests in such Global Security or Securities may be
exchanged in whole or in part for the individual Securities
represented thereby;
(p) the date as of which any Global
Security of the series shall be dated if other than the original
issuance of the first Security of the series to be
issued;
(q) the form of the Securities of the
series;
(r) if the Securities of the series are to be
convertible into or exchangeable for any securities or property of
any Person (including the Company), the terms and conditions upon
which such Securities will be so convertible or exchangeable, and
any additions or changes, if any, to permit or facilitate such
conversion or exchange;
(s) whether the Securities of such series are
subject to subordination and the terms of such
subordination;
(t) any restriction or condition on the
transferability of the Securities of such series;
(u) any addition or change in the provisions
related to compensation and reimbursement of the Trustee which
applies to Securities of such series;
(v) any addition or change in the provisions
related to supplemental indentures set forth in Sections 14.04 and
14.02 which applies to Securities of such series;
(w) provisions, if any, granting special rights
to Holders upon the occurrence of specified events;
(x) any addition to or change in the Events of
Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 7.02 and any addition or change in the
provisions set forth in Article VII which applies to Securities of
the series;
(y) any addition to or change in the covenants
set forth in Article VI which applies to Securities of the series;
and
(z) any other terms of the Securities of such
series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by
Section 14.01).
All Securities
of any one series shall be substantially identical, except as to
denomination and except as may otherwise be provided herein or set
forth in a Company Order or in one or more indentures supplemental
hereto.
Section 3.02
Denominations.
In the absence of any specification
pursuant to Section 3.01 with respect to Securities of any
series, the Securities of such series shall be issuable only as
Securities in denominations of any integral multiple of $1,000, and
shall be payable only in U.S. Dollars.
Section 3.03 Execution, Authentication,
Delivery and Dating .
(a) The Securities shall be executed in the name
and on behalf of the Company by the manual or facsimile signature
of its Chairman of the Board of Directors, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, one of
its Vice Presidents or Treasurer. If the Person whose signature is
on a Security no longer holds that office at the time the Security
is authenticated and delivered, the Security shall nevertheless be
valid.
(b) 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 Company Order for the
authentication and delivery of such Securities and, if required
pursuant to Section 3.01, a supplemental indenture or Company
Order setting forth the terms of the Securities of a series. The
Trustee shall thereupon authenticate and deliver such Securities
without any further action by the Company. The Company Order shall
specify the amount of Securities to be authenticated and the date
on which the original issue of Securities is to be
authenticated.
(c) In authenticating the first Securities of
any series and accepting the additional responsibilities under this
Indenture in relation to such Securities the Trustee shall receive,
and (subject to Section 11.02) shall be fully protected in
relying upon an Officer’s Certificate and an Opinion of
Counsel, each prepared in accordance with Section 16.01
stating that the conditions precedent, if any, provided for in the
Indenture have been complied with.
(d) The Trustee shall have the right to decline
to authenticate and deliver the Securities under this
Section 3.03 if the issue of the Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the
Trustee.
(e) Each Security shall be dated the date of its
authentication, except as otherwise provided pursuant to
Section 3.01 with respect to the Securities of such
series.
(f) Notwithstanding the provisions of
Section 3.01 and of this Section 3.03, if all of the
Securities of any series are not to be originally issued at the
same time, then the documents required to be delivered pursuant to
this Section 3.03 must be delivered only once prior to the
authentication and delivery of the first Security of such
series;
(g) If the Company shall establish pursuant to
Section 3.01 that the Securities of a series are to be issued
in whole or in part in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall
represent an aggregate amount equal to the aggregate principal
amount of the Outstanding Securities of such series to be
represented by such Global Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary’s instruction and
(iv) shall bear a legend substantially to the following
effect:
“Unless
and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.”
The aggregate principal amount of each Global
Security may from time to time be increased or decreased by
adjustments made on the records of the Security Custodian, as
provided in this Indenture.
(h) Each Depositary designated pursuant to
Section 3.01 for a Global Security in registered form must, at
the time of its designation and at all times while it serves as
such Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
(i) Members of, or participants in, the
Depositary (“Members”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf
by the Depositary or by the Security Custodian under such Global
Security, and the Depositary may be treated by the Company, the
Trustee, the Paying Agent and the Registrar and any of their agents
as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, the Paying Agent or the Registrar
or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Members,
the operation of customary practices of the Depositary governing
the exercise of the rights of an owner of a beneficial interest in
any Global Security. The Holder of a Global Security may grant
proxies and otherwise authorize any Person, including Members and
Persons that may hold interests through Members, to take any action
that a Holder is entitled to take under this Indenture or the
Securities.
(j) No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in one of the forms provided for
herein duly executed by the Trustee or by an Authenticating Agent
by manual or facsimile signature of an authorized signatory of the
Trustee, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
Section 3.04 Temporary Securities
.
(a) Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary
Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form and
with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities. Any such temporary Security may be in global form,
representing all or a portion of the Outstanding Securities of such
series. Every such temporary Security shall be executed by the
Company and shall be authenticated and delivered by the Trustee
upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Security or Securities in
lieu of which it is issued.
(b) If temporary Securities of any series are
issued, the Company will cause definitive Securities of such series
to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such
series upon surrender of such temporary Securities at the office or
agency of the Company in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations and of like tenor.
Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
(c) Upon any exchange of a portion of a
temporary Global Security for a definitive Global Security or for
the individual Securities represented thereby pursuant to this
Section 3.04 or Section 3.06, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction
of the principal amount evidenced thereby, whereupon the principal
amount of such temporary Global Security shall be reduced for all
purposes by the amount so exchanged and endorsed.
Section 3.05 Registrar .
(a) The Company will keep, at an office or
agency to be maintained by it in a Place of Payment where
Securities may be presented for registration or presented and
surrendered for registration of transfer or of exchange, and where
Securities of any series that are convertible or exchangeable may
be surrendered for conversion or exchange, as applicable (the
“ Registrar ”), a security register for
the registration and the registration of transfer or of exchange of
the Securities (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the “
Register ”), as in this Indenture provided,
which Register shall at all reasonable times be open for inspection
by the Trustee. Such Register shall be in written form or in any
other form capable of being converted into written form within a
reasonable time. The Company may have one or more co-Registrars;
the term “ Registrar ” includes any
co-registrar.
(b) The Company shall enter into an appropriate
agency agreement with any Registrar or co-Registrar not a party to
this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the
Company fails to maintain a Registrar for any series, the Trustee
shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 11.01. The Company or any
Affiliate thereof may act as Registrar, co-Registrar or transfer
agent.
(c) The Company hereby appoints the Trustee at
its Corporate Trust Office as Registrar in connection with the
Securities and this Indenture, until such time as another Person is
appointed as such.
Section 3.06 Transfer and Exchange
.
(i) Upon surrender for registration of transfer
of any Security of any series at the Registrar the Company shall
execute, and the Trustee or any Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee,
one or more new Securities of the same series for like aggregate
principal amount of any authorized denomination or denominations.
The transfer of any Security shall not be valid as against the
Company or the Trustee unless registered at the Registrar at the
request of the Holder, or at the request of his, her or its
attorney duly authorized in writing.
(ii) Notwithstanding any other provision of this
Section, unless and until it is exchanged in whole or in part for
the individual Securities represented thereby, a Global Security
representing all or a portion of the Securities of a series may not
be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
(i) At the option of the Holder, Securities of
any series (other than a Global Security, except as set forth
below) may be exchanged for other Securities of the same series for
like aggregate principal amount of any authorized denomination or
denominations, upon surrender of the Securities to be exchanged at
the Registrar.
(ii) Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the
Holder making the exchange is entitled to receive.
(c) Exchange of Global Securities for Individual
Securities. Except as provided below, owners of beneficial
interests in Global Securities will not be entitled to receive
individual Securities.
(i) Individual Securities shall be issued to all
owners of beneficial interests in a Global Security in exchange for
such interests if: (A) at any time the Depositary for the
Securities of a series notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series
or if at any time the Depositary for the Securities of such series
shall no longer be eligible under Section 3.03(h) and, in each
case, a successor Depositary is not appointed by the Company within
90 days of such notice, or (B) the Company executes and
delivers to the Trustee and the Registrar an Officer’s
Certificate stating that such Global Security shall be so
exchangeable. In connection with the exchange of an entire Global
Security for individual Securities pursuant to this subsection (C),
such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series, will authenticate
and deliver to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of individual Securities of
authorized denominations.
(ii) The owner of a beneficial interest in a
Global Security will be entitled to receive an individual Security
in exchange for such interest if an Event of Default has occurred
and is continuing. Upon receipt by the Security Custodian and
Registrar of instructions from the Holder of a Global Security
directing the Security Custodian and Registrar to (x) issue
one or more individual Securities in the amounts specified to the
owner of a beneficial interest in such Global Security and
(y) debit or cause to be debited an equivalent amount of
beneficial interest in such Global Security, subject to the rules
and regulations of the Depositary:
(A) the Security Custodian and Registrar shall
notify the Company and the Trustee of such instructions,
identifying the owner and amount of such beneficial interest in
such Global Security;
(B) the Company shall promptly execute and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series, shall
authenticate and deliver to such beneficial owner individual
Securities in an equivalent amount to such beneficial interest in
such Global Security; and
(C) the Security Custodian and Registrar shall
decrease such Global Security by such amount in accordance with the
foregoing. In the event that the individual Securities are not
issued to each such beneficial owner promptly after the Registrar
has received a request from the Holder of a Global Security to
issue such individual Securities, the Company expressly
acknowledges, with respect to the right of any Holder to pursue a
remedy pursuant to Section 7.07 hereof, the right of any
beneficial Holder of Securities to pursue such remedy with respect
to the portion of the Global Security that represents such
beneficial Holder’s Securities as if such individual
Securities had been issued.
(iii) If specified by the Company pursuant to
Section 3.01 with respect to a series of Securities, the
Depositary for such series of Securities may surrender a Global
Security for such series of Securities in exchange in whole or in
part for individual Securities of such series on such terms as are
acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(A) to each Person specified by such Depositary
a new individual Security or Securities of the same series, of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Security; and
(B) to such Depositary a new Global Security in
a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of individual Securities delivered to
Holders thereof.
(iv) In any exchange provided for in clauses
(i) through (iii), the Company will execute and the Trustee
will authenticate and deliver individual Securities in registered
form in authorized denominations.
(v) Upon the exchange in full of a Global
Security for individual Securities, such Global Security shall be
canceled by the Trustee. Individual Securities issued in exchange
for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so
registered.
(d) All Securities issued upon any registration
of transfer or exchange of Securities shall be valid obligations of
the Company evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered for
such registration of transfer or exchange.
(e) Every Security presented or surrendered for
registration of transfer, or for exchange or payment shall (if so
required by the Company, the Trustee or the Registrar) be duly
endorsed, or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company, the Trustee and
the Registrar, duly executed by the Holder thereof or by his, her
or its attorney duly authorized in writing.
(f) No service charge will be made for any
registration of transfer or exchange of Securities. The Company may
require payment of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Securities, other than
those expressly provided in this Indenture to be made at the
Company’s own expense or without expense or charge to the
Holders.
(g) The Company shall not be required to
(i) register, transfer or exchange Securities of any series
during a period beginning at the opening of business 15 days before
the day of the transmission of a notice of redemption of Securities
of such series selected for redemption under Section 4.03 and
ending at the close of business on the day of such transmission, or
(ii) register, transfer or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
(h) Prior to the due presentation for
registration of transfer or exchange of any Security, the Company,
the Trustee, the Paying Agent, the Registrar, any co-Registrar or
any of their agents may
deem and treat
the Person in whose name a Security is registered as the absolute
owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other
writing thereon) for all purposes whatsoever, and none of the
Company, the Trustee, the Paying Agent, the Registrar, any
co-Registrar or any of their agents shall be affected by any notice
to the contrary.
(i) In case a successor Company (“
Successor Company ”) has executed an indenture
supplemental hereto with the Trustee pursuant to Article XIV, any
of the Securities authenticated or delivered pursuant to such
transaction may, from time to time, at the request of the Successor
Company, be exchanged for other Securities executed in the name of
the Successor Company with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Securities
surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the Successor Company, shall
authenticate and deliver Securities as specified in such order for
the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a Successor Company
pursuant to this Section 3.06 in exchange or substitution for
or upon registration of transfer of any Securities, such Successor
Company, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new
name.
(j) Each Holder of a Security agrees to
indemnify the Company and the Trustee against any liability that
may result from the transfer, exchange or assignment of such
Holder’s Security in violation of any provision of this
Indenture and/or applicable United States federal or state
securities laws.
(k) The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any
Security other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and
to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements
hereof.
(l) Neither the Trustee nor any agent of the
Trustee shall have any responsibility for any actions taken or not
taken by the Depositary.
Section 3.07 Mutilated, Destroyed, Lost
and Stolen Securities .
(a) If (i) any mutilated Security is
surrendered to the Trustee at its Corporate Trust Office or
(ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee security or
indemnity bond satisfactory to them to save each of them and any
Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Security has been acquired by a protected
purchaser, then the Company shall execute and upon Company Order
the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a
new Security of the same series and of like tenor, form, terms and
principal amount, bearing a number not contemporaneously
outstanding, that neither gain nor loss in interest shall result
from such exchange or substitution.
(b) In case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, pay the amount due on such Security in accordance
with its terms.
(c) Upon the issuance of any new Security under
this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in respect thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
(d) Every new Security of any series issued
pursuant to this Section shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
(e) The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 3.08 Payment of Interest;
Interest Rights Preserved .
(a) Interest on any Security that is payable and
is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Person in whose name such Security (or
one or more Predecessor Securities) is registered at the close of
business on the Record Date for such interest notwithstanding the
cancellation of such Security upon any transfer or exchange
subsequent to the Record Date. Payment of interest on Securities
shall be made at the Corporate Trust Office (except as otherwise
specified pursuant to Section 3.01) or, at the option of the
Company, by check mailed to the address of the Person entitled
thereto as such address shall appear in the Register or, in
accordance with arrangements satisfactory to the Trustee, by wire
transfer to an account designated by the Holder.
(b) Any interest on any Security that is payable
but is not punctually paid or duly provided for on any Interest
Payment Date (herein called “ Defaulted
Interest ”) shall forthwith cease to be payable to
the Holder on the relevant Record Date by virtue of his, her or its
having been such a Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause
(i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest 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 (a “ Special Record Date
”), 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 be not more than 15
calendar days and not less than 10 calendar days prior to the date
of the proposed payment and not less than 10 calendar 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 the Holders of such Securities at
their addresses as they appear in the Register, not less than 10
calendar 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 at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause
(ii).
(ii) The Company may make payment of any
Defaulted Interest on 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.
(c) Subject to the provisions set forth herein
relating to Record Dates, each Security delivered pursuant to any
provision of this Indenture in exchange or substitution for, or
upon registration of transfer of, any other Security shall carry
all the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 3.09 Cancellation . Unless
otherwise specified pursuant to Section 3.01 for Securities of
any series, all Securities surrendered for payment, redemption,
registration of transfer or exchange or credit against any sinking
fund or otherwise shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee for cancellation and shall
be promptly canceled by it and, if surrendered to the Trustee,
shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this
Indenture. The Trustee shall dispose of all canceled Securities
held by it in accordance with its then customary procedures and
deliver a certificate of such disposal to the Company upon its
request therefor. The acquisition of any Securities by the Company
shall not operate as a redemption or satisfaction of the
Indebtedness represented thereby unless and until such Securities
are surrendered to the Trustee for cancellation.
Section 3.10 Computation of Interest
. Except as otherwise specified pursuant to Section 3.01 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 3.11 Currency of Payments in
Respect of Securities .
(a) Except as otherwise specified pursuant to
Section 3.01 for Securities of any series, payment of the
principal of and premium, if any, and interest on Securities of
such series will be made in U.S. Dollars.
(b) For purposes of any provision of the
Indenture in which the Holders of Outstanding Securities may
perform an action that requires that a specified percentage of the
Outstanding Securities of all series perform such action and for
purposes of any decision or determination by the Trustee of amounts
due and unpaid for the principal of and premium, if any, and
interest on the Securities of all series in respect of which moneys
are to be disbursed ratably, the principal of and premium, if any,
and interest on the Outstanding Securities denominated in a Foreign
Currency will be the amount in U.S. Dollars based upon exchange
rates, determined as specified pursuant to Section 3.01 for
Securities of such series, as of the date for determining whether
the Holders entitled to perform such action have performed it or as
of the date of such decision or determination by the Trustee, as
the case may be.
(c) Any decision or determination to be
made regarding exchange rates shall be made by an agent appointed
by the Company; provided, that such agent shall accept such
appointment in writing and the terms of such appointment shall, in
the opinion of the Company at the time of such appointment, require
such agent to make such determination by a method consistent with
the method provided pursuant to Section 3.01 for the making of
such decision or determination. All decisions and determinations of
such agent regarding exchange rates shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of the
Securities.
Section 3.12 Judgments . The Company
may provide pursuant to Section 3.01 for Securities of any
series that (a) the obligation, if any, of the Company to pay
the principal of, premium, if any, and interest on the Securities
of any series in a Foreign Currency or U.S. Dollars (the “
Designated Currency ”) as may be specified
pursuant to Section 3.01 is of the essence and agrees that, to
the fullest extent possible under applicable law, judgments in
respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of and premium, if any,
and interest on such Securities shall, notwithstanding any payment
in any other Currency (whether pursuant to a judgment or
otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum
paid in such other Currency (after any premium and cost of
exchange) on the business day in the country of issue of the
Designated Currency or in the international banking community (in
the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in
the Designated Currency that may be so purchased for any reason
falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not
discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
Section 3.13 CUSIP Numbers . The
Company in issuing any Securities may use CUSIP, ISIN or other
similar numbers, if then generally in use, and thereafter with
respect to such series, the Trustee may use such numbers in any
notice of redemption or exchange with respect to such series
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the
CUSIP, ISIN or other similar numbers.
ARTICLE IV
REDEMPTION OF
SECURITIES
Section 4.01 Applicability of Right of
Redemption . Redemption of Securities (other than pursuant to a
sinking fund, amortization or analogous provision) permitted by the
terms of any series of Securities shall be made (except as
otherwise specified pursuant to Section 3.01 for Securities of
any series) in accordance with this Article; provided, however,
that if any such terms of a series of Securities shall conflict
with any provision of this Article, the terms of such series shall
govern.
Section 4.02 Selection of Securities to
be Redeemed .
(a) If the Company shall at any time elect to
redeem all or any portion of the Securities of a series then
Outstanding, it shall at least 30 days prior to the Redemption Date
fixed by the Company (unless a shorter period shall be satisfactory
to the Trustee) notify the Trustee of such Redemption
Date and of the
principal amount of Securities to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as the Trustee
shall deem appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of
such series; provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination)
for such Security. In any case where more than one Security of such
series is registered in the same name, the Trustee may treat the
aggregate principal amount so registered as if it were represented
by one Security of such series. The Trustee shall, as soon as
practicable, notify the Company in writing of the Securities and
portions of Securities so selected.
(b) For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be
redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof
shall not be included in the Securities selected for
redemption.
Section 4.03 Notice of Redemption
.
(a) Notice of redemption shall be given by the
Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company; provided, however, that the
Company makes such request at least 3 days prior to the date by
which such notice of redemption must be given to Holders in
accordance with this Section 4.03; provided further that, the
text of such notice shall be prepared by the Company, not less than
60 days before the Redemption Date unless the Trustee consents to a
shorter period, to the Holders of Securities of any series to be
redeemed in whole or in part pursuant to this Article, in the
manner provided in Section 16.04. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the
Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Security of a series
designated for redemption, in whole or in part, shall not affect
the sufficiency of any notice of redemption with respect to the
Holder of any other Security of such series.
(b) All notices of redemption shall identify the
Securities to be redeemed (including CUSIP, ISIN or other similar
numbers, if available) and shall state:
(i) such election by the Company to redeem
Securities of such series pursuant to provisions contained in this
Indenture or the terms of the Securities of such series or a
supplemental indenture establishing such series, if such be the
case;
(ii) the Redemption Date;
(iii) the Redemption Price;
(iv) if less than all Outstanding Securities of
any series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the Securities of
such series to be redeemed;
(v) that on the Redemption Date the Redemption
Price will become due and payable upon each such Security to be
redeemed, and that, if applicable, interest thereon shall cease to
accrue on and after said date;
(vi) the Place or Places of Payment where such
Securities are to be surrendered for payment of the Redemption
Price;
(vii) that the redemption is for a sinking fund,
if such is the case; and
(viii) that the Securities must be surrendered
to the Paying Agent for payment of the Redemption Price.
Section 4.04 Deposit of Redemption
Price . On or prior to 11:00 a.m.,
time, on the Redemption Date for any Securities, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.03) an amount of money in the Currency
in which such Securities are denominated (except as provided
pursuant to Section 3.01) sufficient to pay the Redemption
Price of such Securities or any portions thereof that are to be
redeemed on that date.
Section 4.05 Securities Payable on
Redemption Date . Notice of redemption having been given as
aforesaid, any Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price and
from and after such date (unless the Company shall Default in the
payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price; provided, however, that (unless
otherwise provided pursuant to Section 3.01) installments of
interest that have a Stated Maturity on or prior to the Redemption
Date for such Securities shall be payable according to the terms of
such Securities and the provisions of Section 3.08.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal
thereof and premium, if any, thereon shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor
in the Security.
Section 4.06 Securities Redeemed in
Part . Any Security that is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office
or agency of the Company as is specified pursuant to
Section 3.01 with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Registrar and the
Trustee duly executed by the Holder thereof or his, her or its
attorney duly authorized in writing, and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities
of the same series, of like tenor and form, of any authorized
denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered; except that if a Global
Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such
Global Security, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of
the principal of the Global Security so surrendered. In the case of
a Security providing appropriate space for such notation, at the
option of the Holder thereof, the Trustee, in lieu of delivering a
new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion
thereof.
ARTICLE V
SINKING
FUNDS
Section 5.01 Applicability of Sinking
Fund .
(a) Redemption of Securities permitted or
required pursuant to a sinking fund for the retirement of
Securities of a series by the terms of such series of Securities
shall be made in accordance with such terms of such series of
Securities and this Article, except as otherwise specified pursuant
to Section 3.01 for Securities of such series, provided,
however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such
series shall govern.
(b) 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 Mandatory Sinking Fund
Payment may be subject to reduction as provided in
Section 5.02.
Section 5.02 Mandatory Sinking Fund
Obligation . The Company may, at its option, satisfy any
Mandatory Sinking Fund Payment obligation, in whole or in part,
with respect to a particular series of Securities by
(a) delivering to the Trustee Securities of such series in
transferable form theretofore purchased or otherwise acquired by
the Company or redeemed at the election of the Company pursuant to
Section 4.03 or (b) receiving credit for Securities of
such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee. The Trustee shall credit
such Mandatory Sinking Fund Payment obligation with an amount equal
to the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect to so satisfy any Mandatory Sinking Fund
Payment obligation, it shall deliver to the Trustee not less than
45 days prior to the relevant sinking fund payment date a written
notice signed on behalf of the Company by its Chairman of the Board
of Directors, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, one of its Vice Presidents, its
Treasurer or one of its Assistant Treasurers, which shall designate
the Securities (and portions thereof, if any) so delivered or
credited and which shall be accompanied by such Securities (to the
extent not theretofore delivered) in transferable form. In case of
the failure of the Company, at or before the time so required, to
give such notice and deliver such Securities the Mandatory Sinking
Fund Payment obligation shall be paid entirely in
moneys.
Section 5.03 Optional Redemption at
Sinking Fund Redemption Price . In addition to the sinking fund
requirements of Section 5.02, to the extent, if any, provided
for by the terms of a particular series of Securities, the Company
may, at its option, make an Optional Sinking Fund Payment with
respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make
such Optional Sinking Fund Payment shall not be exercised in any
year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate
to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company
intends to exercise its right to make such optional payment in any
year it shall deliver to the Trustee not less than 45 days prior to
the relevant sinking fund payment date a certificate signed by its
Chairman of the Board of Directors, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, one of
its Vice Presidents, Treasurer or one of its Assistant Treasurers
stating that the Company will exercise such optional right, and
specifying the amount which the Company will pay on or before the
next succeeding sinking fund payment date. Such certificate shall
also state that no Event of Default has occurred and is
continuing.
Section 5.04 Application of Sinking Fund
Payment .
(a) If the sinking fund payment or payments made
in funds pursuant to either Section 5.02 or 5.03 with respect
to a particular series of Securities plus any unused balance of any
preceding sinking fund payments made in funds with respect to such
series shall exceed $50,000 (or a lesser sum if the Company shall
so request, or such equivalent sum for Securities denominated other
than in U.S. Dollars), it shall be applied by the Trustee on the
sinking fund payment date next following the date of such payment,
unless the date of such payment shall be a sinking fund payment
date, in which case such payment shall be applied on such sinking
fund payment date, to the redemption of Securities of such series
at the redemption price specified pursuant to Section 4.03(b).
The Trustee shall select, in the manner provided in
Section 4.02, for redemption on such sinking fund payment
date, a sufficient principal amount of Securities of such series to
absorb said funds, as nearly as may be, and shall, at the expense
and in the name of the Company, thereupon cause notice of
redemption of the Securities to be given in substantially the
manner provided in Section 4.03(a) for the redemption of
Securities in part at the option of the Company, except that the
notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so
applied by the Trustee to the redemption of Securities of such
series shall be added to the next sinking fund payment received in
funds by the Trustee and, together with such payment, shall be
applied in accordance with the provisions of this
Section 5.04. Any and all sinking fund moneys held by the
Trustee on the last sinking fund payment date with respect to
Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be
applied by the Trustee to the payment of the principal of the
Securities of such series at Maturity.
(b) On or prior to each sinking fund payment
date, the Company shall pay to the Trustee a sum equal to all
interest accrued to but not including the date fixed for redemption
on Securities to be redeemed on such sinking fund payment date
pursuant to this Section 5.04.
(c) The Trustee shall not redeem any Securities
of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking
fund during the continuance of a Default in payment of interest on
any Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this
paragraph) of which the Trustee has actual knowledge, except that
if the notice of redemption of any Securities of such series shall
theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in
accordance with the terms of this Article. Except as aforesaid, any
moneys in the sinking fund at the time any such Default or Event of
Default shall occur and any moneys thereafter paid into the sinking
fund shall, during the continuance of such Default or Event of
Default, be held as security for the payment of all the Securities
of such series; provided, however, that in case such Default or
Event of Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking
fund payment date on which such moneys are required to be applied
pursuant to the provisions of this Section 5.04.
ARTICLE VI
PARTICULAR COVENANTS OF THE
COMPANY
The Company hereby covenants and agrees as
follows:
Section 6.01 Payments of Securities
. The Company will duly and punctually pay the principal of and
premium, if any, on each series of Securities, and the interest
which shall have accrued thereon, at the dates and place and in the
manner provided in the Securities and in this Indenture.
Section 6.02 Paying Agent
.
(a) The Company will maintain in each Place of
Payment for any series of Securities, if any, an office or agency
where Securities may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be
served (the “ Paying Agent ”). The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as Paying
Agent to receive all presentations, surrenders, notices and
demands.
(b) The Company may also from time to time
designate different or additional offices or agencies where the
Securities of any series may be presented or surrendered for any or
all such purposes (in or outside of such Place of Payment), and may
from time to time rescind any such designations; provided, however,
that no such designation or rescission shall in any manner relieve
the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the
Trustee of any such additional designation or rescission of
designation and of any change in the location of any such different
or additional office or agency. The Company shall enter into an
appropriate agency agreement with any Paying Agent not a party to
this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. The Company
or any Affiliate thereof may act as Paying Agent.
Section 6.03 To Hold Payment in
Trust .
(a) If the Company or an Affiliate thereof shall
at any time act as Paying Agent with respect to any series of
Securities, then, on or before the date on which the principal of
and premium, if any, or interest on any of the Securities of that
series by their terms or as a result of the calling thereof for
redemption shall become payable, the Company or such Affiliate will
segregate and hold in trust for the benefit of the Holders of such
Securities or the Trustee a sum sufficient to pay such principal
and premium, if any, or interest which shall have so become payable
until such sums shall be paid to such Holders or otherwise disposed
of as herein provided, and will notify the Trustee of its action or
failure to act in that regard. Upon any proceeding under any
federal bankruptcy laws with respect to the Company or any
Affiliate thereof, if the Company or such Affiliate is then acting
as Paying Agent, the Trustee shall replace the Company or such
Affiliate as Paying Agent.
(b) If the Company shall appoint, and at the
time have, a Paying Agent for the payment of the principal of and
premium, if any, or interest on any series of Securities, then
prior to 11:00 a.m.,
time, on the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become
payable as aforesaid, whether by their terms or as a result of the
calling thereof for redemption, the Company will deposit with such
Paying Agent a sum sufficient to pay such principal and premium, if
any, or interest, such sum to be held in trust for the benefit of
the Holders of such Securities or the Trustee, and (unless such
Paying Agent is the Trustee), the Company or any
