CPI AEROSTRUCTURES,
INC.
SUBORDINATED DEBT
SECURITIES
INDENTURE
Dated as of
[___________]
[ TRUSTEE ]
as Trustee
TABLE OF CONTENTS
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ARTICLE 2.
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF
SECURITIES
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Designation and
Terms of Securities.
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Form of
Securities and Trustee’s Certificate.
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Denominations:
Provisions for Payment.
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Execution and
Authentications.
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Registration of
Transfer and Exchange.
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Mutilated,
Destroyed, Lost or Stolen Securities.
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ARTICLE 3.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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Satisfaction of
Sinking Fund Payments with Securities.
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Redemption of
Securities for Sinking Fund.
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Payment of
Principal, Premium and Interest.
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Maintenance of
Office or Agency.
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Appointment to
Fill Vacancy in Office of Trustee.
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Compliance with
Consolidation Provisions.
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ARTICLE 5.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
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Company to
Furnish Trustee Names and Addresses of Securityholders.
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Preservation Of
Information; Communications With Securityholders.
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ARTICLE 6.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
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Collection of
Indebtedness and Suits for Enforcement by Trustee.
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Application of
Moneys Collected.
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Rights and
Remedies Cumulative; Delay or Omission Not Waiver.
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Control by
Securityholders.
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Undertaking to
Pay Costs.
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ARTICLE 7.
CONCERNING THE TRUSTEE
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Certain Duties
and Responsibilities of Trustee.
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Certain Rights
of Trustee.
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Trustee Not
Responsible for Recitals or Issuance or Securities.
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Compensation
and Reimbursement.
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Reliance on
Officers’ Certificate.
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Disqualification; Conflicting
Interests.
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Corporate
Trustee Required; Eligibility.
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Resignation and
Removal; Appointment of Successor.
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Acceptance of
Appointment By Successor.
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Merger,
Conversion, Consolidation or Succession to Business.
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Preferential
Collection of Claims Against the Company.
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ARTICLE 8.
CONCERNING THE SECURITYHOLDERS
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Evidence of
Action by Securityholders.
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Proof of
Execution by Securityholders.
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Who May be
Deemed Owners.
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Certain
Securities Owned by Company Disregarded.
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Actions Binding
on Future Securityholders.
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ARTICLE 9.
SUPPLEMENTAL INDENTURES
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Supplemental
Indentures Without the Consent of Securityholders.
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Supplemental
Indentures With Consent of Securityholders.
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Effect of
Supplemental Indentures.
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Securities
Affected by Supplemental Indentures.
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Execution of
Supplemental Indentures.
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ARTICLE 10.
SUCCESSOR ENTITY
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Company May
Consolidate, Etc.
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Successor
Entity Substituted.
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Evidence of
Consolidation, Etc. to Trustee.
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ARTICLE 11.
SATISFACTION AND DISCHARGE
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Satisfaction
and Discharge of Indenture.
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Discharge of
Obligations.
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Deposited
Moneys to be Held in Trust.
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Payment of
Moneys Held by Paying Agents.
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ARTICLE 12.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
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ARTICLE 13.
MISCELLANEOUS PROVISIONS
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Effect on
Successors and Assigns.
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Surrender of
Company Powers.
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Treatment of
Securities as Debt.
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Certificates
and Opinions as to Conditions Precedent.
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Payments on
Business Days.
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Conflict with
Trust Indenture Act.
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ARTICLE 14.
SUBORDINATION OF SECURITIES
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INDENTURE
INDENTURE, dated as of [_____________], between
CPI AEROSTRUCTURES, INC., a New York corporation (the
“Company”), and [ TRUSTEE ], as trustee
(the “Trustee”):
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of subordinated debt
securities (hereinafter referred to as the
“Securities”), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in
this Indenture provided, as registered Securities without coupons,
to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, in consideration of the premises
and the purchase of the Securities by the holders thereof, it is
mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE
1. DEFINITIONS
Section
1.01.
Definitions of
Terms.
The terms defined in this Section (except as in
this Indenture or any indenture supplemental hereto otherwise
expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section
and shall include the plural as well as the singular. All other
terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such
Act defined in the Securities Act of 1933, as amended (except as
herein or any indenture supplemental hereto otherwise expressly
provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of the execution of
this instrument.
“ Authenticating Agent ”
means an authenticating agent with respect to all or any of the
series of Securities appointed by the Trustee pursuant to Section
2.10.
“ Bankruptcy Law ” means
Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
“ Board of Directors ” means
the Board of Directors of the Company or any duly authorized
committee of such Board.
“ Board Resolution ” means a
copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification.
“ Business Day ” means, with
respect to any series of Securities, any day other than
a day on which
federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office
of the Trustee, are authorized or obligated by law, executive order
or regulation to close.
“ Certificate ” means a
certificate signed by any Officer. The Certificate need not comply
with the provisions of Section 13.07.
“ Company ” means CPI
Aerostructures, Inc., a corporation duly organized and existing
under the laws of the State of New York, and, subject to the
provisions of Article Ten, shall also include its successors and
assigns.
“ Corporate Trust Office ”
means the office of the Trustee at which, at any particular time,
its corporate trust business shall be principally administered,
which office at the date hereof is located at [ ].
“ Custodian ” means any
receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.
“ Default ” means any event,
act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.
“ Depositary ” means, with
respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the
“Exchange Act”), or other applicable statute or
regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
“ Event of Default ” means,
with respect to Securities of a particular series, any event
specified in Section 6.01, continued for the period of time, if
any, therein designated.
“ Global Security ” means,
with respect to any series of Securities, a Security executed by
the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
“ Governmental Obligations ”
means securities that are (a) direct obligations of the United
States of America for the payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or
redeemable at the option of the issuer thereof at any time prior to
the stated maturity of the Securities, and shall also include a
depositary receipt issued by a bank or trust company as custodian
with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal of or
interest on the
Governmental Obligation evidenced by such
depositary receipt.
“ herein ”, “
hereof ” and “ hereunder ”, and
other words of similar import, refer to this Indenture as a whole
and not to any particular Article, Section or other
subdivision.
“ Indenture ” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“ Interest Payment Date ”,
when used with respect to any installment of interest on a Security
of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series
is due and payable.
“ Officer ” means, with
respect to the Company, the chairman of the Board of Directors, a
chief executive officer, a president, a chief financial officer, a
chief operating officer, any executive vice president, any senior
vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the
secretary or any assistant secretary.
“ Officers’ Certificate
” means a certificate signed by any two Officers. Each such
certificate shall include the statements provided for in Section
13.07, if and to the extent required by the provisions
thereof.
“ Opinion of Counsel ” means
an opinion in writing subject to customary exceptions of legal
counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions
thereof.
“ Outstanding ”, when used
with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or
delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
“ Person ” means any
individual, corporation, partnership, joint venture, joint-stock
company, limited liability company, association, trust,
unincorporated organization, any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
“ Predecessor Security ” of
any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in lieu of
a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
“ Responsible Officer ” when
used with respect to the Trustee means the chairman of its board of
directors, the chief executive officer, the president, any vice
president, the secretary, the treasurer, any trust officer, any
corporate trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the
particular subject.
“ Securities ” means the debt
Securities authenticated and delivered under this
Indenture.
“ Securityholder ”, “
holder of Securities ”, “ registered
holder ”, or other similar term, means the Person or
Persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in
accordance with the terms of this Indenture.
“ Security Register ” and
“ Security Registrar ” shall have the meanings
as set forth in Section 2.05.
“ Subsidiary ” means, with
respect to any Person, (i) any corporation at least a majority of
whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner.
“ Trustee ” means [ ], and,
subject to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, “Trustee”
shall mean each such Person. The term “Trustee” as used
with respect to a particular series of the Securities shall mean
the trustee with respect to that series.
“ Trust Indenture Act ” means
the Trust Indenture Act of 1939, as amended.
“ Voting Stock ”, as applied
to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a
contingency.
ARTICLE 2. ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF
SECURITIES
Section
2.01.
Designation and Terms of
Securities.
(a) The aggregate
principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be
issued in one or more series up to the aggregate principal amount
of Securities of that series from time to time authorized by or
pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the
Securities of the series (which shall distinguish the Securities of
that series from all other Securities);
(2) any limit upon the
aggregate principal amount of the Securities of that series that
may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
that series);
(3) the date or dates
on which the principal of the Securities of the series is payable,
any original issue discount that may apply to the Securities of
that series upon their issuance, the principal amount due at
maturity, and the place(s) of payment;
(4) the rate or rates
at which the Securities of the series shall bear interest or the
manner of calculation of such rate or rates, if any;
(5) the date or dates
from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of
determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates or the
manner of determination of such record dates;
(6) the right, if any,
to extend the interest payment periods and the duration of such
extension;
(7) the period or
periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(8) the obligation, if
any, of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund, mandatory redemption, or analogous
provisions (including payments made in cash in satisfaction of
future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of
the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the form of the
Securities of the series including the form of the Certificate of
Authentication for such series;
(10) if other than
denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the
series shall be issuable;
(11) any and all other
terms (including terms, to the extent applicable, relating to any
auction or remarketing of the Securities of that series and any
security for the obligations of the Company with respect to such
Securities) with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required
by or advisable under United States laws or regulations or
advisable in connection with the marketing of Securities of that
series;
(12) whether the
Securities are issuable as a Global Security and, in such case, the
terms and the identity of the Depositary for such
series;
(13) whether the
Securities will be convertible into or exchangeable for shares of
common stock or other securities of the Company or any other Person
and, if so, the terms and conditions upon which such Securities
will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may
be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange
features, and the applicable conversion or exchange
period;
(14) if other than the
principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section
6.01;
(15) any additional or
different Events of Default or restrictive covenants (which may
include, among other restrictions, restrictions on the
Company’s ability or the ability of the Company’s
Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in
respect of their capital stock; redeem capital stock; place
restrictions on such Subsidiaries placing restrictions on their
ability to pay dividends, make distributions or transfer assets;
make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage
in transactions with stockholders and affiliates; issue or sell
stock of their Subsidiaries; or effect a consolidation or merger)
or financial covenants (which may include, among other financial
covenants, financial covenants that require the Company and its
Subsidiaries to maintain specified interest coverage, fixed charge,
cash flow-based or asset-based ratios) provided for with respect to
the Securities of the series;
(16) if other than
dollars, the coin or currency in which the Securities of the series
are denominated (including, but not limited to, foreign
currency);
(17) the terms and
conditions, if any, upon which the Company shall pay amounts in
addition to the stated interest, premium, if any and principal
amounts of the Securities of the series to any Securityholder that
is not a “United States person” for federal tax
purposes;
(18) any restrictions
on transfer, sale or assignment of the Securities of the
series;
(19) whether interest
or principal (and premium, if any) may be paid in property other
than cash, including in securities of the Company, or, in the case
of interest, by increasing the principal amount of the Securities
by the amount of the interest earned; and
(20) the subordination
terms of the Securities of the series.
All Securities of any one series shall be
substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If any of the terms of the series are
established by action taken pursuant to a Board Resolution of the
Company, a copy of an appropriate record of such action shall be
certified by the secretary or an assistant secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate of the Company setting forth the terms
of the series.
Securities of any particular series may be
issued at various times, with different dates on which the
principal or any installment of principal is payable, with
different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which
such interest may be payable and with different redemption
dates.
Section
2.02.
Form of Securities and
Trustee’s Certificate.
The Securities of any series and the
Trustee’s certificate of authentication to be borne by such
Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided
in a Board Resolution, and set forth in an Officers’
Certificate, and they may have such letters, numbers or other marks
of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
Section
2.03.
Denominations: Provisions for
Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10). The Securities of a particular series shall bear
interest payable on the dates and at the rate specified with
respect to that series. Subject to Section 2.01(a)(16) and Section
2.01(a)(19), the principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time is legal tender
for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City
and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be
computed
on the basis of a 360-day year composed of twelve 30-day
months.
The interest installment on any Security that is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Securities of that series shall be paid
to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on
the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and
prior to such Interest Payment Date, interest on such Security will
be paid upon presentation and surrender of such Security as
provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be
payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as provided
in clause (1) or clause (2) below:
(1) The Company may
make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Notwithstanding the foregoing, if the
Defaulted Interest is payable otherwise than in cash pursuant to
Section 2.01(a)(19), the Company shall make such other arrangements
as are satisfactory to the Trustee for the payment of the Defaulted
Interest in such other property prior to the date of the proposed
payment. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to
such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record
date.
(2) The Company may
make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the
terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section
with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the first day of a
month, or the first day of the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of
a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Security of a series delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other
Security.
Section
2.04.
Execution and
Authentications.
The Securities shall be signed on behalf of the
Company by one of its Officers. Signatures may be in the form of a
manual or facsimile signature.
The Company may use the facsimile signature of
any Person who shall have been an Officer, notwithstanding the fact
that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such
an officer of the Company. The Securities may contain such
notations, legends or endorsements required by law, stock exchange
rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.
A Security shall not be valid until
authenticated manually by an authorized signatory of the Trustee,
or by an Authenticating Agent. Such signature shall be conclusive
evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture. At any time and from
time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written
order of the Company for the authentication and delivery of such
Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such
Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon,
an Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to
authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section
2.05.
Registration of Transfer and
Exchange.
(a) Securities of any
series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, for other Securities of
such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder
making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b) The Company shall
keep, or cause to be kept, at its office or agency designated for
such purpose in the Borough of Manhattan, the City and State of New
York, or such other location designated by the Company, a register
or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities
and transfer of Securities as herein provided shall be appointed as
authorized by Board Resolution (the “Security
Registrar”).
Upon surrender for transfer of any Security at
the office or agency of the Company designated for such purpose,
the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or
transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal
amount.
All Securities presented or surrendered for
exchange or registration of transfer, as provided in this Section,
shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder’s duly
authorized attorney in writing.
(c) Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and set
forth in an Officers’ Certificate, or established in one or
more indentures supplemental to this Indenture, no service charge
shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any
transfer.
(d) The Company shall
not be required (i) to issue, exchange or register the transfer of
any Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of
less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, nor
(ii) to register the transfer of or exchange any Securities of any
series or portions thereof called for redemption, other than the
unredeemed portion of any such Securities being redeemed in part.
The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof.
Section
2.06.
Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the
definitive Securities in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the Borough of
Manhattan, the City and State of New York, and the Trustee shall
authenticate and such office or agency shall deliver in exchange
for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises
the Trustee to the effect that definitive Securities need not be
executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be
entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered
hereunder.
Section
2.07.
Mutilated, Destroyed, Lost or
Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
the Company’s request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant’s Security and of
the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request
or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of
a sum sufficient to cover any tax or other governmental
charge
that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected
therewith.
In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for
such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Security and of the ownership
thereof.
Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional
contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or
be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
Section
2.08.
Cancellation.
All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall
be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company at the time
of such surrender, the Trustee shall deliver to the Company
canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section
2.09.
Benefits of
Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the
Securities (and, with respect to the provisions of Article
Fourteen, the holders of any indebtedness of the Company to which
the Securities of any series are subordinated) any legal or
equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the
Securities (and, with respect to the provisions of Article
Fourteen, the holders of any indebtedness of the Company to which
the Securities of any series are subordinated).
Section
2.10.
Authenticating
Agent.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or
all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent
and to the Company. Upon resignation, termination or cessation of
eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company.
Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights,
powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section
2.11.
Global Securities.
(a) If the Company
shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the
Company shall execute and the Trustee shall, in accordance with
Section 2.04, authenticate and deliver, a Global Security that (i)
shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depositary
or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and
(iv) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in
part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor
Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may
be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the
Depositary for a series of the Securities notifies the Company that
it is unwilling or unable to continue as Depositary for such series
or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for
such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
condition, as the case may be, or if an Event of Default has
occurred and is continuing and the Company has received a request
from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will
execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that
the Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.11 shall
no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.04, the Trustee,
upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the
Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. Upon the exchange of
the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global
Security shall be canceled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE 3. REDEMPTION OF
SECURITIES AND SINKING FUND PROVISIONS
Section
3.01.
Redemption.
The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section 2.01
hereof.
Section
3.02.
Notice of
Redemption.
(a) In case the
Company shall desire to exercise such right to redeem all or, as
the case may be, a portion of the Securities of any series in
accordance with any right the Company reserved for itself to do so
pursuant to Section 2.01 hereof, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days
and not more than 90 days before the date fixed for redemption of
that series to such holders at their last addresses as they
shall
appear
upon the Security Register, unless a shorter period is specified in
the Securities to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the holder
of any Security of any series designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity
of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the
date fixed for redemption and the redemption price at which
Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed
will be made at the office or agency of the Company in the Borough
of Manhattan, the City and State of New York, upon presentation and
surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less than
all the Securities of a series are to be redeemed, the notice to
the holders of Securities of that series to be redeemed in part
shall specify the particular Securities to be so
redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the
portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be
issued.
(b) If less than all
the Securities of a series are to be redeemed, the Company shall
give the Trustee at least 45 days’ notice (unless a shorter
notice shall be satisfactory to the Trustee) in advance of the date
fixed for redemption as to the aggregate principal amount of
Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than $1,000
(subject to Section 2.01(a)(10)), the Securities to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The
Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by an Officer, instruct the
Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice
to be in the name of the Company or its own name as the Trustee or
such paying agent may deem advisable. In any case in which notice
of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or
other
records,
or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
Section
3.03.
Payment Upon
Redemption.
(a) If the giving of
notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed
for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such
Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place
of payment specified in the notice, said Securities shall be paid
and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest
payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation
of any Security of such series that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and
the office or agency where the Security is presented shall deliver
to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in
principal amount equal to the unredeemed portion of the Security so
presented.
Section
3.04.
Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise specified as
contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein
referred to as a “mandatory sinking fund payment,” and
any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the
terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of
Securities of such series.
Section
3.05.
Satisfaction of Sinking Fund
Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of
a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms
of such Securities as provided for by the terms of such series,
provided that such Securities have not been
previously so
credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such
Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced
accordingly.
Section
3.06.
Redemption of Securities for
Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period
shall be satisfactory to the Trustee), the Company will deliver to
the Trustee an Officers’ Certificate specifying the amount of
the next ensuing sinking fund payment for that series pursuant to
the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will,
together with such Officers’ Certificate, deliver to the
Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section
3.03.
ARTICLE 4.
COVENANTS
Section
4.01.
Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place and
in the manner provided herein and established with respect to such
Securities. Payments of principal on the Securities may be made at
the time provided herein and established with respect to such
Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear
in the Security Register, or U.S. dollar wire transfer to, a U.S.
dollar account (such wire transfer to be made only to a
Securityholder of an aggregate principal amount of Securities of
the applicable series in excess of U.S. $2,000,000 and only if such
Security
